A statutory right of appeal against an order under Order 34 Rule 2 (2) C. P. C. is not lost by the subsequent passing of a final decree.

( 1 ) THIS is a revision against the order of the learned District Judge, cuddapah, allowing the appeal filed against the order of t he District Munsif, nandalur, in I. A. No. 752 of 1951.

( 2 ) THE facts that gave rise to the revision may be briefly stated. The petitioner filed a suit on a mortgage and obtained a preliminary decree for foreclosure on 31-1-1951. Under the decree, the amount payable was ascertained to be a sum of Rs. 1321-3-0 and the respondent was directed to pay that amount on or before 31-7-1951. The respondent did not pay the money within the prescribed time but applied for extension of time and time was extended till 29-11-1951. Even within the extended time, he did not pay the amount but applied for further extension. The learned District Munsif refused to extend the time and made a final decree for foreclosure. The respondent preferred an appeal against the order of the learned District munsif refusing to give further time but he did not prefer any appeal against the final decree. Before the learned Judge, a preliminary objection was raised to the effect that no appeal lay against an order refusing to extend time as the said order had become merged in the final decree. The learned District judge rejected the preliminary objection and allowed the appeal directing the Munsif to give further time. This revision is filed against that order. Learned Counsel for the petitioner contends that no appeal lies against an order refusing to extend time under Order 34 Rule 2 C. P. C. after a final decree is made in a suit.

( 3 ) IT will be convenient at this stage to read the relevant provisions on which reliance is placed by one or other of the parties before me. Order 34 rule 2 (1) : In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree : (2) The Court may, on good cause shown and upon terms to be fixed by the Court from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under subrule I or the amount adjudged due in respect of subsequent costs, charges, expenses and interest. 3. (2) Where payment in accordance with sub-rule (i) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming; through or under him are debarred from all right to redeem the mortgaged property and also if necessary, ordering the defendant to put the plaintiff in possession of the property. Order 43 rule 1 : An appeal shall He from the following orders under the provisions of section 104 namely : (o) an order under rule 2, rule 4 or rule 7 of Order 34 refusing to extend the time for the payment of mortgage money.

( 4 ) IT is clear from the aforesaid provisions that the Court has power to extend or not to extend the time fixed for the payment of the amount declared due under a decree from time to time before final decree is made and under order 43 Rule 1 (o) a statutory right of appeal is conferred against an order under that clause. There is no provision in the Act to the effect that this statutory right of appeal ceases to exist on the passing of a final decree: Prime facie, therefore, a mortgagor aggrieved by an order made under Order 34 Rule 2 (2) has a right of appeal against that order. This aspect of the case has been considered at some length by Viswanatha Sastri J. in Kanakayya v. Lakshmayya. There, the question was whether a right of appeal against an order of remand would be defeated by the passing of a final decree after remand. One of the arguments advanced before the learned Judge was that, after the passing of the final decree, the order of remand merged in the final decree and therefore, an aggrieved party could only file an appeal against the final decree. Dealing with that argument, the learned Judge observed at page 383 :" The litigant has a right of appeal against an order of remand; b