1. The facts of this case are that the Plaintiff-Respondent brought a mortgage suit against the Defendant-Appellant on the 4th May 1922. After several adjournments the ease was fixed for hearing on the 24th July 1923. On that day the Defendant's pleader stated that he had no instruction and an ex parte preliminary decree was passed in favour of the Plaintiff. The Defendant thereafter applied for a re-hearing of the case under Order 9, Rule 13. That application was registered and the 16th February 1924, was fixed for hearing of the re-hearing case. On that date the Defendant applied for time on the ground of illness. The prayer was rejected and the re-hearing case dismissed for default. On the same day, namely the 16th February 1924, the Court on the application of the Plaintiff passed the final decree for the sale of the mortgaged properties. On the 25th February 1924 the Defendant filed an application for setting aside the order dismissing his application under Order 9, Rule 13. That application was registered and finally disposed of on the merits on the 7th April 1924. The present appeal was filed in this Court on the 15th May 1924 against the orders, dated the 16th February and the 7th April 1924, namely the orders by which the lower Court dismissed his application under Order 9, Rule 13 and the application under Order 9, Rule 9, for the restoration of his previous application.
2. At the hearing of this appeal a preliminary objection is taken by the Respondent to the effect that the final decree having been passed before the appeal was lodged in this Court, this appeal is incompetent. In my opinion, this objection should succeed. So far as this Court is concerned it is taken to be concluded by authorities] that if an appeal is preferred against the] preliminary decree after the final decree has been passed, it cannot be heard. The principle upon which this view has been taken is that the right of appeal from interlocutory orders ceases with the disposal of the suit. It has been so held in the case of Madhusudan Sen v. Kamini Kanta Sen (1905) 32 Cal. 1023. There the appeal was preferred against an order of remand passed under Section 562 of the Code of 1882 (corresponding to Order 41, Rule 23 of the new Code) after the suit on remand was heard and decided by the trial Court; but there was no appeal from the said decision in the suit. It was held that the appeal to the High Court from the order of remand after the suit was finally decided on remand was not maintainable. Maclean, C.J., observed thus: ' If a party desires to avail himself of the privilege conferred by Section 588 (Order 43, Rule 1) in relation to an order of remand he ought to do so before the final disposal of the suit. He cannot be permitted to wait until after the final disposal of the suit and then to appeal against the interlocutory order without appealing from the decree in the suit.' There are no doubt divergent decisions which have all been collected and considered in the case of Nanibala Dasi v. Ichhamoye Dasi : AIR1925Cal218 to which I was a party where it is laid down that in a suit for partition an appeal against the preliminary decree is incompetent if filed after the preparation of the final decree. It is not questioned that the same principle applies to the present case. But it is argued by the Appellant that the right of appeal conferred on a party by law under Order 43 should not be taken away without any statutory enactment to that effect because he has not taken certain steps under some other proceeding; and it is argued on the authority of some of the cases cited on behalf of the Appellant that the final decree must be considered to be dependent upon the preliminary decree and therefore if the preliminary decree is set aside on appeal, though filed after the final decree was passed, the final decree must accordingly be set aside. This question was considered in the cases which have taken the view affirmed in the case of Nanibala Dasi v. Ichhamoye Dasi : AIR1925Cal218 . The learned Judges have stated that the principle underlying the cases which have been reviewed in the case of Nanibala Dad v. Ichhamoye Dasi : AIR1925Cal218 is that the right of appeal against interlocutory orders ceases with the disposal of the suit and that the preliminary decree is said to be an interlocutory order because it is an order passed before the suit was finally disposed of. If the contention of the Appellant is given effect to, it may lead to many absurd results. Every decree depends upon the validity of the procedure followed in the suit and upon the legality of interlocutory orders passed in the suit: and if one of such orders is appealable, the aggrieved patty may appeal against that order after the decree and cease to care for the decree in the suit which may be had at great waste of time and money. That is not a desirable procedure to follow. I may quote one instance in order to illustrate my view. Under Order 23, Rule 3 the Court may refuse to pass a decree in accordance with the compromise alleged to have been effected between the parties. There is an appeal provided against that order. The Defendant, if aggrieved by that order, may appeal from it even after a decree is passed on the merits. This I do not believe can to the policy of the law.
3. The present case is much weaker than the cases in which the question has been examined. Here the appeal is not against the preliminary decree but against an order refusing to set aside the preliminary decree. The effect of the Petitioner succeeding in the appeal will be to revive the application for setting aside the preliminary decree, and if that application succeeds the preliminary decree may be re-opened and the final decree should be taken to be contingent upon the result of those proceedings. I therefore hold that this appeal cannot proceed and must be dismissed with costs, three gold mohurs.
4. I agree.