The right of appeal from interlocutory orders ceases with the disposal of the suit.

JUDGMENT

Suhrawardy, J. - 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 u/s 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 and Another Vs. Ichhamoyee Dasi and Others, AIR 1925 Cal 218 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 affirm