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Subramania Chettyar Represented by His Agent with Power of Attorney Doraiswamy Pillay Vs. Palachakrapani Chettyar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.380
AppellantSubramania Chettyar Represented by His Agent with Power of Attorney Doraiswamy Pillay
RespondentPalachakrapani Chettyar and ors.
Excerpt:
mortgage decree - preliminary decree declaring plaintiff entitled to amount of his claim--subsequent passing of final decree--appeal against preliminary decree after passing of final decree--amendment of appeal memo. - .....for sale on a mortgage bond was-passed by the district munsif on the 27th september 1909, nand a final decree on the 29th of november 1909. the preliminary decree was that the plaintiff should be entitled to recover the amount claimed with costs as prayed. there was no question of substance left to be decided before the final decree was issued. the defendant preferred an appeal on the 15th of december 1909 against the preliminary decree of the 27th of september. as a final decree had been already passed, the appropriate course was, no doubt, to appeal against that decree and it was not necessary for him to appeal against, the preliminary decree. one appeal was quite sufficient. he paid full stamp duty on the amount decreed against him. the appeal has been dismissed by the subordinate.....
Judgment:

1. In this case, a preliminary decree for sale on a mortgage bond was-passed by the District Munsif on the 27th September 1909, Nand a final decree on the 29th of November 1909. The preliminary decree was that the plaintiff should be entitled to recover the amount claimed with costs as prayed. There was no question of substance left to be decided before the final decree was issued. The defendant preferred an appeal on the 15th of December 1909 against the preliminary decree of the 27th of September. As a final decree had been already passed, the appropriate course was, no doubt, to appeal against that decree and it was not necessary for him to appeal against, the preliminary decree. One appeal was quite sufficient. He paid full stamp duty on the amount decreed against him. The appeal has been dismissed by the Subordinate Judge on the ground that it was unsustainable as no appeal was presented against the final decree. As only one appeal was required against the decree for sale and as the defendant had in substance appealed against the Munsif's decree directing a sale of his property, we think, in the circumstances, the Appellate Court ought to have allowed the appellant to amend his appeal memorandum by converting the appeal to one against the final decree. We shall allow the appellant to do so now. We reverse the decree of the Appellate Court and direct the appeal as amended to be disposed of on the merits. The appellant must pay the respondents' costs up to date in this Court and in the lower Appellate Court.


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