SHARMA, J.:-

This is a petition by Prohit Swaroop Narain for leave to appeal to Supreme Court under Art.133 (1)(a) and (b), Constitution of India and S.109(a), Civil P.C.

2. The order against which the leave to appeal is sought was pronounced by a Division Bench of this Court in Civil Revision No.80 of 1954 on 25-11-1954. The applicant was a defendant in a suit brought by the opposite party M/s. Subh Karan Radha Mohan for the recovery of Rs.26,9,711-10-3 by sale of certain property said to have been mortgaged by the applicant with the opposite party. Two issues namely Nos.9 and 11 were framed by the Court of first instance on the preliminary objection of the defendant and they are as follows :

(9) Whether the agreement referred to in issues NoS.7 and 8 is sufficient to extinguish the mortgagee rights ?

(10) Whether the suit is premature ?

3. Issue No.9 was decided in favour of the plaintiffs and it was held that the mortgagee rights had not been extinguished. A Question was raised during the decision of the said" issue whether oral evidence could be led to prove an oral agreement subsequent to the mortgage deed. It was decided by the Court of first instance that the defendant was not entitled to lead any evidence to prove this subsequent oral agreement and thereafter held that the mortgage had not been extinguished.

4. As to issue No.11, the Court came to the conclusion that the suit was premature so far as the sale of mortgaged property was concerned. But it held that the plaintiff could get a money decree for the amount sued for. Thereafter, the case was fixed for further evidence of parties.

5. In his application for revision before this Court, the applicant challenged the decision of the Court of first instance on both the above issues. Apreliminary objection was raised on behalf of the opposite party that in view of the Full Bench decision of this Court in the case of Swamp Narain v. GopinathA 1 R 1953 Raj 137 (FB)(A), as the two points can be raised under S.105, Civil P.C. in an appeal after the trial Court has finally passed a decree the revision was not maintainable. This preliminary objection was accepted by the Division Bench and it dismissed the revision by the order dated 25-11-1954.

6. In this application, the applicant challenges the Full Bench Decision in Prohit Swaroop Narain case (A) and says that it is against the view of most of the High Courts in India and therefore, the applicants application, raises a question of law of general importance. It has, therefore, been submitted that the case is a fit one for leave to appeal to Supreme Court both under S.109, Civil P.C. and Art.133 (1) of the Constitution of India.

7. A preliminary objection has been taken by Mr. C.L. Agarwal on behalf of the opposite party that the order of this Court against which leave is sought for appeal to Supreme Court is neither a judgment nor a decree nor a final order within the meaning of Art.133(1) of the Constitution of India. It was argued that an appeal could lie to the Supreme Court under Art.133(1) only against a judgment finally disposing of a case or a decree or a final order.

In the present case, the order against which permission to appeal is sought was only an interlocutory order which did not finally dispose of the suit but left it alive. No leave to appeal can, therefore, be given. It was further argued that the provisions of S.109, Civil P.C. are subject to Chap. IV Part V of the Constitution and as Art.133 finds place in the said Chapter of Part V of the Constitution, S.109 cannot confer any wider powers of appeal than Art.133.

8. We have been taken through a very large number of authorities by the learned counsel for both the parties.Mr. D.M. Bhandari on behalf of the applicant relied upon the observations of Shearer, J. in the Full Bench case of Tobacco Manufacturers (India) Ltd. v. The State, AIR 1951 Pat 29 (FB) (B).The Full Bench consisted of three Judges namely Shearer, Sarjoo Prosad and Rai, JJ. Sarjoo Prosad and