Banerjee and Pratt, JJ.
1. This appeal arises out of an application under Section 89 of the Transfer of Property Act by the plaintiffs, appellants, for an order absolute for the sale of certain mortgaged property. Upon that application being made, the defendant-respondent raised an objection on the ground that the mortgage debt was paid off, after the decree under Section 88 was made. The first Court, whilst holding that the objection could be entertained, came to the conclusion, upon the evidence, that the alleged payment was not proved. On appeal by the defendant the lower Appellate Court has reversed the finding of the first Court and held that the payment was proved; and it has accordingly refused the application under Section 89 of the Transfer of Property Act. Against this decision of the lower Appellate Court the plaintiffs have preferred the present appeal, and it is contended on their behalf, first, that the Courts below were wrong in holding that Section 258 of the Code of Civil Procedure was no bar to their entertaining the objection of the defendant, and, secondly, that, if Section 258 be held inapplicable to the present case by reason of the proceedings under Section 89 of the Transfer of Property Act not being proceedings in execution of a decree, in that case the appeal to the lower Appellate Court was incompetent, as Section 244 of the Code of Civil Procedure must in that view of the matter be inapplicable to the Case.
2. We are of opinion that this contention is unsound. Proceedings under Section 89 of the Transfer of Property Act are not in our opinion proceedings in execution of a decree, but are proceedings in continuation of the original suit. This view is in accordance with that taken by this Court in Tiluck Singh v. Parsotein Proshad (1) (1895) I. L. R. 22 Calc. 925. and Tara Prosad Roy v. Bhobodeb Roy (2) (1895) I. L. B. 22 Calc. 931. The decision of a Full Bench of the Madras High Court in. Mallikar junadu Setti v. Lingamurti Pantulu (3) (1900) I. h. R. 25 Mad. 244. was cited by the learned vakil for the appellant in support of his contention that proceedings under Section 89 of the Transfer of Property Act were in the nature of proceedings in execution of a decree passed under Section 88. That, no doubt, is the opinion of the majority of the Full Bench, but with all respect for their opinion, we agree with the learned Chief Justice of Madras and Mr. Justice Moore, who took the opposite view. That being so, Section 258 of the Code of Civil Procedure is no bar to the Court's inquiring into the plea of payment raised by the mortgagor in satisfaction of the decree nisi made under Section 88 of the Transfer of Property Act.
3. Then, as for the contention that in this view of the matter Section 244 of the Code of Civil Procedure was inapplicable to the ease, and the appeal to the lower Appellate Court was therefore incompetent, it is sufficient to gay that an appeal lay to the lower Appellate Court against the order absolute that was made by the first Court under Section 540 of the Code as an appeal from an original decree.
4. It was urged that the appeal that was preferred to the lower Appellate Court was preferred as an appeal from an order and not as an appeal from a decree, and that the proper court-fee for an appeal from a decree was not paid. We think that it is a sufficient answer to this objection to say that it is met by the provisions of Section 578 of the Code of Civil Procedure; the error of the lower Appellate Court in entertaining the appeal being one which did not affect the jurisdiction of that Court or the merits of the case.
5. The result, then, is that the appeal fails and must be dismissed without costs, no one appearing for the respondent.