Barju Biswal vs Kunja Behari Mahapatra

Wort, J.—This is a reference under Order 46, Rule 1, by the learned Munsif of Cuttack in a case in which there has been an application by the plaintiff for the substitution of the heir of the sole defendant in a mortgage suit. A preliminary decree had been passed but before the application for the final decree the sole defendant had died and the question that came up before the Munsif was whether the suit in those circumstances abated or not. He appears to have been under some difficulty in deciding the question and as a result referred the case to this Court under Order 46, Rule 1. An objection is taken on the part of the defendant that the reference to this Court is not competent. That depends on the question of whether the order which the Munsif would make was appealable or not. Order 46, Rule 1, provides that before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, the Court is entitled under the provisions of this order to make a reference to decide any question of law, etc,

In the first place it is quite clear that if the learned Munsif had decided that the suit did not abate and had made a final decree, there would have been an appeal. That much is admitted. The question arises whether in the circumstances of his deciding that the suit did abate and refusing to pass a final decree there would also have been an appeal. Order 34, Rule 5, Sub-clause (3) provides that where payment in accordance with Sub-rule (1) has not been made, the Court shall on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, etc. Now in the case of Subbalakshmi Ammal v. Ramanujam Chetty [1918] 42 Mad. 52 this question came up for decision. The facts of the case were that the respondent to the application obtained a preliminary decree for sale on 27th October 1910. He applied for execution of the preliminary decree by sale of the mortgaged property but had not obtained previously a final decree. There was a direction by the Court to apply for a final decree and accordingly that application was made. The objection of the defendant was that the application was barred by limitation. In the result the Court dismissed the application for passing a final decree. There was an appeal to the Subordinate Judge and the question that came up before the Madras High Court was whether the appeal to the Subordinate Judge was competent or not. The Madras High Court decided that there was an appeal and relied in the course of its own judgment on a decision in the case of Suppu Nayakan v. Perumal Chetty [1916] 34 I.C. 372 where the same Court had held that an order declaring that the suit had abated because the legal representative of the deceased defendant had not been brought on the record in time was a decree and appealable as such though no formal decree dismissing the suit had been drawn up In my judgment that is an authority for the question that comes before us to decide that in this case whichever way the learned Munsif decides the matter which came before him, there was an appeal from the decree and in consequence of there being an appeal, the reference to this Court under Order 46, Rule 1, is not competent.

The reference must therefore be rejected. The application before the learned Munsif will be heard and determined according to law. There will be no order for costs.

Mohammad Noor, J.

I agree.