KUNJAMMAL Vs. KRISHNA CHETTIAR

JUDGEMENT

(1.) This is an appeal under Clause 15, Letters Patent against the judgment or Panchapakesa Ayyar J. in C. M. A. No. 328 of 1948. The judgment-debtor is the appellant. The respondent filed O. S. No. 33 of 1929 in the District Mun-siff's Court, Erode, for partition of certain properties held in co-ownership. There were a number of defendants in that suit. On 3-10-1929 a preliminary decree was passed. Clause 1 of the decree declared the right of the plaintiff to a 5/6 share in the properties and directed a division thereof. Under Clause 2, the plaintiff was declared entitled to mesne profits from 31-10-1927 till date' of delivery of possession at the rate of 7 1/2 pothies of paddy or their value, Rs. 200, per annum. The third clause provided that the plaintiff was entitled to recover the mesne profits subject to the condition that he paid the court-fees payable on the amount of the mesne profits granted under the decree within one week from that date and that in default of payment of the court-fee the plaintiff should not obtain a copy of the decree and execute the same against the defendants. Thus, the decree was a preliminary decree with reference to division of the properties and a final executable decree as regards the mesne profits. There was an appeal against the preliminary decree and that was disposed of on 12-11-1935. There was a second appeal to this court and that was disposed of on 6-12-1939. Defendant 10 who is the appellant before us was not a party to these appeals. Meantime, on 152- 1935, the final decree was passed, and the plaintiff obtained possession through Court on 20-6-1935. On 12-2-1945, he filed E. P. No. 292 of 1945 for the recovery of mesne profits under the decree from the 10th defendant. This application was resisted on two grounds. She contended that as the execution application was presented more than 12 years after the date of the decree it was barred by limitation. She also contended that as the plaintiff had not paid the court-fee within a week as provided in Clause 3 of the decree he was not entitled to execute the same. Both these contentions were overruled by the Courts below and execution was directed to issue. There was an appeal by defendant 10 to this Court C. M. A. No. 328 of 1948 and the judgments of the Courts below were affirmed oy Panchapakesa Ayyar J. Against this judgment the present appeal has been preferred.

(2.) Mr. B.V. Viswanatha Ayyar has pressed before us both the contentions as to the bar of limitation and the non-executability of the decree by reason of the failure to pay the court-fees. On the question of limitation he contends that so far as mesne profits were concerned, there was a final executable decree on 3-10-1929 and that therefore the present application filed on 12-2-1945 was barred under S. 48, Civil P. C. The answer of the respondent is that there was an appeal and a second appeal against the decree dated 3-10-1929, the second appeal was finally disposed of on 6-12-1939, the period, of limitation begins to run only from that date, and the present execution application is accordingly in time. Mr. Viswanatha Aiyar replies that defendant 10 was not a party to the appeals and that as against her there was an executable decree on 3-10-1929 and that the present application presented more than 12 years from that date is barred by limitation under Section 48, Civil P. C.

(3.) The law is well settled that when a decree is taken in appeal to a higher Court the decree passed in appeal supersedes that of the Court below and becomes the decree in the suit itself and that thereafter that is the only decree which is capable of execution and that the period of limitation for execution would run from the date of that decree. In --'Krishtama Chariar v. Mangammal', 26 Mad 91 (FB) (A), the question arose how far this doctrine would be applicable in a case where the appeal was in respect of a portion of the subject matter of the suit. The contention that was urged was that as regards the un-appealed portion there was no impediment to execution and therefore as to that limitation should be reckoned from the date of the decree of the first Court, and that as that portion was not the subject matter of the appeal the period of limitation should not be calculated from the date of the decree of the appellate Court. This contention was rejected by this Court. Bhashyam Ayyangar J. stated the principle applicable to the case in these terms: