PERIAKARUPPAN CHETTIAR Vs. VENUGOPAL PILLAI AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of an order passed by the learned District Judge of South Arcot in proceedings in execution of a mortgage decree in O.S. No. 23 of 1928, on the file of his Court. A preliminary decree was passed on 4th May, 1929 and the defendants were given three months time to pay, that is, till 4th August, 1929. The 8th defendant who is the appellant before us was a puisne mortgagee and a party to the suit as such. The preliminary decree was for a sum of Rs. 6,905 -13 -0. The 8th defendant (the appellant) preferred an appeal to the High Court with regard to the claim for interest and that appeal (A.S. No. 175 of 1930) was allowed by this Court on 26th November, 1934. The result was a reduction of the amount payable to Rs. 6,112 -8 -2. Pending appeal as further proceedings in suit had not been stayed, the trial Court passed a final decree on 23rd September, 1933, on the basis of the preliminary decree passed by it on 4th May, 1929. After the decision of the High Court in A.S. No. 175 of 1930, the decree -holder filed an execution petition on 23rd September, 1936 and again another petition in 1939 and finally on 31st March, 1942, he filed E.P. No. 52 of 1942 for further proceedings in execution by bringing the mortgaged properties to sale. Along with the execution application, he filed a miscellaneous application No. 85 of 1943 for an amendment of the execution petition by substituting in columns 8 and 11 the amount payable according to the preliminary decree as modified by the High Court in place of the amount fixed by the preliminary decree of the trial Court. The learned District Judge allowed both the applications and adjourned the execution petition for further steps. The present appeal purports to be filed against the order in M.P. No. 85 of 1943.

(2.) A preliminary objection was taken on behalf of the respondents that no appeal lay against the order in the miscellaneous petition. We do not consider that there is any substance in this objection. It has been held by this Court over and over again that an order in execution proceedings deciding any dispute between the parties affecting substantive rights can form the subject -matter of an appeal under Sections 47 and 96 of the Civil Procedure Code. In this case the order did decide that the decree -holder was entitled to proceed with the execution of his decree. The present appeal can be understood to be an appeal against the order allowing the decree -holder to proceed with the execution in which case an appeal with certainly lie. We overrule the preliminary objection.

(3.) WE consider that the present appeal has to be decided by an application of the principle underlying the decision of another Bench of this Court to which one of us was a party in Veerankutty v. : AIR1939Mad735 . In that case there was a preliminary decree in a mortgage suit passed by the trial Court on 21st July, 1925. There was an appeal therefrom, but pending the appeal a final decree for sale was passed on 9th November, 1925. The appeal against the preliminary decree was dismissed on 16th March, 1927. On 15th March, 1930, the decree -holder applied for execution of the final decree passed in 1925. Two objections were taken. One was that the execution application was barred by the law of limitation as it had been filed more than three years after the passing of the final decree. This objection was overruled and a consideration of this objection need not detain us as it does, not arise in this case. The other objection was that the final decree already passed was not executable and that an application for a fresh final decree or an amendment of the original decree was necessary before the decree -holder could proceed with the execution. This objection was also overruled. The learned Judges distinguished the ruling of the Judicial Committee in Jowad Hussain v. Gendan Singh, (1926) 51 M.L.J. 781 :, L.R. 53 IndAp 197 :, I.L.R. 6 Pat. 24 (P.C.) which affirmed the proposition laid down in Gajadhar Singh v. Kishan Jiwan Lal : I.L.R. (1917) All. 641 on the ground that the question which fell to be considered was not under consideration in those cases and say: