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Ram Chandra Gope Vs. Srimati Parameswari Gopini and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.358
AppellantRam Chandra Gope
RespondentSrimati Parameswari Gopini and ors.
Cases ReferredLakshmi v. Maru Devi
Excerpt:
appeal - redemption suit--preliminary and final decrees--appeal against preliminary decree after passing of final decree, whether competent. - .....the plaintiff in possession of the property. the plaintiff duly paid the money into court and a final decree was passed on the 13th. august 1920. on the 10th september 1920 parameswari filed an appeal against the preliminary decree only. in that appeal she was successful and the judgment and decree of the lower court were set aside.2. it is contended on behalf of the appellant that the appeal to the lower appellate court is not competent as there was no appeal against the final decree. the decision of a division bench of this court in thecase of kulada prasad chowdhury v. ramanand patnaik 61 ind. cas. 923 : 33 c.l.j. 412 : 25 c.w.n. 776 : 48 c. 1036, supports the contention that no appeal against a preliminary decree is maintainable when no appeal is preferred against a final decree.....
Judgment:

1. The plaintiff brought a suit out of which this appeal arises to redeem a mortgage on the allegation that he had purchased the equity of redemption from the mortgagor, Parameswari. The first Court passed a preliminary decree directing the plaintiff to pay into Court Rs. 200 within seven days from the date of the judgment and that the principal defendant mortgagee would thereupon re-transfer the property to the plaintiff free from the mortgage and from all incumbrances created by defendant No. 1 and put the plaintiff in possession of the property. The plaintiff duly paid the money into Court and a final decree was passed on the 13th. August 1920. On the 10th September 1920 Parameswari filed an appeal against the preliminary decree only. In that appeal she was successful and the judgment and decree of the lower Court were set aside.

2. It is contended on behalf of the appellant that the appeal to the lower Appellate Court is not competent as there was no appeal against the final decree. The decision of a Division Bench of this Court in thecase of Kulada Prasad Chowdhury v. Ramanand Patnaik 61 Ind. Cas. 923 : 33 C.L.J. 412 : 25 C.W.N. 776 : 48 C. 1036, supports the contention that no appeal against a preliminary decree is maintainable when no appeal is preferred against a final decree passed before the filing of the appeal. On behalf of the respondents our attention has been drawn to a decision of another Bench of this Court in Atul Chandra Singha v. Kunja Behari Suigha 30 Ind. Cas. 321 : 22 C.L.J. 90. But in that case the final decree was made after the appeal was preferred to the lower Appellate Court. It is true that in the case of Lakshmi v. Maru Devi 12 Ind. Cas. 664 : 37 M. 29 : 10 M.L.T. 437 : 21 M.L.J. 1063 the Madras High Court has taken a contrary view but we are bound by the decision of this Court.

3. We accordingly decree this appeal, set aside the judgment and decree of the lower Appellate Court and restore the judgment and decree of the Munsif decreeing the suit. The appellant will get his costs in this Court and in the lower Appellate Court.


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