GOLI PADDARAJU Vs. MATTAPALLI RAJU

JUDGEMENT

(1.) THE mortgagors are the appellants. The history of this litigation is found in the judgment of Wadsworth and Patanjali Sastri JJ. in A.S. No. 463 of 1911. It is not necessary to restate the facts as they have been fully stated in that judgment. It will be enough if we notice the relevant facts sufficient for disposing of this appeal. The respondents obtained a preliminary decree on two mortgages on 17 -8 -1928 against the appellants and others. The final decree was passed on 16 -9 -1929. Defendants 3 and 15, who are the purchasers of portions of the hypotheca, preferred an appeal to ' the High Court, being A.S. No. 33 of 1929. That appeal was disposed of on 8 -12 -1933. The preliminary decree was modified in some respects. Whereas under the decree of the Subordinate Judge, all the mortgaged properties were directed to be sold in the order mentioned in the mortgage deed, in the appeal the High Court directed that the properties purchased by defendants 3 and 16 should be sold last. With this modification the appeal was dismissed. Before the appeal against the preliminary decree was disposed of, the final decree was executed and the decree -holder purchased the properties, and the decree was satisfied in part. The decree -holder filed Application No. 6 of 1937 on 8 -12 1936 for the passing of a fresh final decree, while the judgment -debtors filed an application under Madras Act IV [4] of 1938 for scaling down the decree debt. For tactical purposes the plaintiffs obviously withdrew their application, and the application was accordingly dismissed. In the application filed by the judgment -debtors for scaling down the decree debt, it was scaled down. The plaintiffs preferred an appeal to the High Court, being A.S. No. 463 of 1941. The learned Judges held that the amount due under the decree after giving credit to the amounts realised by the sale of the properties should be scaled down. When the mortgagors brought to the notice of the Court that they had filed an application in the lower Court for restitution of the properties sold, the learned Judges reserved the right of the mortgagors to proceed with that application. After the disposal of A. S. No. 463 of 1941, the restitution application was taken up and the learned Subordinate Judge dismissed the same. The mortgagors have preferred the above appeal.

(2.) THE only question that arises in the appeal is whether a sale held in execution of a final decree would be void if subsequently, in an appeal filed against a preliminary decree, the final decree was modified, though the said modification did not affect the right of the mortgagee to proceed against the properties concerned. The learned counsel for the appellants contended that in a mortgage action there can be only one final decree, that when in the appeal against the preliminary decree the appellate Court modified the preliminary decree the final decree lost its legal force, that the sale held pursuant to the final decree was void and therefore that the judgment -debtors would be entitled to a restitution of the properties so sold leaving the mortgagees to work out their rights by filing a fresh application for the passing of the final decree. This argument wag based upon some observations made by the Judicial Committee and by the High Courts in the various decisions cited before us. In Jowad Hussain v. Gendan Singh, 6 Pat. 24: A. I. R. 1926 P. C. 93 the question for consideration was whether the time for filing an application for the passing of the final decree Should be computed from the date of the appellate decree or from the date of the original decree. The Judicial Committee held that the period of limitation would run from the date of the appellate decree, though the appellate decree only confirmed the original decree. In the course of the judgment they expressed their approval of the view of the Allahabad High Court in the decision in Gajadhar Singh v. Kishan Jiwan Lal : AIR1917All163 to the effect that a mortgage action contemplates the passing of only one final decree in a suit for sale upon a mortgage. The Patna High Court in another decision Somar Singh v. Deonandan Prasad Singh, 6 Pat. 780 : : AIR1927Pat215 ), held that an application for enforcing a final decree for sale in a mortgage suit was an application for execution and was governed by Article 182 and not by Article 181, Limitation Act. This view is not sound in view of the later decisions. At p. 787 the learned Judges say; 'In the case now before us the final decree for sale which was made on 28 -10 -1922 during the pendency of the appeal, against the preliminary decree was clearly Imperilled by the appeal, and the decree made by the High Court on 29 -10 -1925, clearly supplemented and completed the decree on 28 -10 1922.'