PERIAKARUPPAN CHETTIAR Vs. VENUGOPAL PILLAI

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 4 May, 1929 and the defendants were given three months time to pay, that is, till 4 August, 1929. The 8 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 8 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 26 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 23 September, 1933, on the basis of the preliminary decree passed by it on 4 May, 1929. After the decision of the High Court in A.S. No. 175 of 1930, the decree-holder filed an execution petition on 23 September, 1936 and again another petition in 1939 and finally on 31 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 Secs.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.) The learned advocate for the appellant contended that the decree-holder was not entitled to proceed to execute his decree because the preliminary decree passed by the trial Court in 1929 was varied by the High Court in 1934 and subsequent to the date of the High Court decree there was neither a fresh final decree nor a modification of the original decree passed by the trial Court in 1933. Accord-ing to him the result of this omission on the part of the decree-holder to pursue either of the two courses is to deprive him completely of all rights under the final decree of 1933. For this position he relied mainly on the decision of a Bench of this Court reported in Balakrishnayya V/s. Linga Rao . In that case the suit was instituted by a mortgagee for the balance due on a mortgage executed in his favour by the husband of the first defendant in the suit. There were however on the date of the institution of the suit, numerous other defendants in possession of portions of the mortgaged properties under alienations effected subsequent to the mortgage. The trial Court passed a preliminary decree in which it exonerated the fourth defendant from the decree. The plaintiff preferred an appeal to the High Court and the High Court on 8 May, 1934, modified the decree of the lower Court in certain particulars. Inter alia the High Court set aside the dismissal of the suit as against the fourth defendant and granted a decree to the plaintiff against the properties in possession of the fourth defendant also and provided for the payment of the value of improvements effected by him. While the appeal was pending in the High Court, the decree- holder applied to the trial Court and obtained a final decree for sale on 3 October, 1927. After the decree of the High Court, the decree-holder filed an execution petition and it appeared from the columns therein that the date of the decree which he was seeking to execute was given as the date of the decree of the High Court in the appeal against the preliminary decree. The learned Judges, Krishnaswami Aiyangar and Kunhi Raman, JJ., held that it was difficult to maintain that the decree of the High Court can be regarded as itself a final decree capable of execution. They pointed out that the contents of the columns of the execution petition suggested that what the decree-holder was seeking to execute was the decree of the High Court. This decision which certainly can, be justified on the facts cannot help the appellant here. In the present case, admittedly what the decree-holder was seeking to execute was the final decree. No doubt there are observations in the judgment of Krishnaswami Aiyangar, J., which appear to suggest that in a case where the appellate Court modifies in any way a preliminary decree passed by the trial Court and pending appeal a final decree has been passed by the trial Court, it might be necessary for the decree-holdejr either to apply for a fresh final decree or to have the final decree already passed suitably amended by incorporating the modifications. But the learned Judges did not decide this point as they thought it was not necessary. They also naturally did not proceed to discuss the further question that even assuming some modification had necessarily to be incorporated in the final decree already passed, what was the course indicated by the Code and if any questions of limitation would arise in respect of an application on that behalf. But the ratio decidendi of the case before them was, as we understand it, that the decree-holder therein was not purporting to execute the final decree which had been passed by the trial Court but the preliminary decree as modified by the High Court. This, of course, he was not entitled to do and this is not what the decree-holder in the present case is seeking to do. The decision of the Full Bench of the Allahabad High Court in Gajadhar Singh V/s. Kishan Jiwan Lal (1917) I.L.R. 39 All. 641 (F.B.) has no relevancy for the present discussion because in that case there was no final decree obtained in pursuance of the preliminary decree passed by the trial Court. There was an appeal from the preliminary decree and the question was when time began to run for an application to obtain a final decree. Their Lordships held that the starting point of limitation would be the date of the appellate decree and not the date of the decree passed by the trial Court.