Norman Macleod, Kt., C.J.
1. The plaintiffs filed a suit in 1905 against the four sons of one Jayachand deceased. They added as a defendant one Bhaichand who they alleged stood surety for the amount due by Jayachand. A decree was passed in March 1907 against defendants Nos. 1 to 4 as representatives of the deceased Jayachand The plaintiffs' suit against defendant No. 5 was dismissed. Against that order of dismissal the plaintiff's appealed but without success. The plaintiffs made various applications for execution against defendants Nos. 1 to 4, including Darkhast No. 745 of 1917 filed in the First Class Subordinate Judge's Court at Dhulia, which was transferred to Jalgaon owing to the transfer of the territorial jurisdiction from Dhulia to Jalgaon. By that Darkhast the applicant sought to attach the particular house to which a claim was made by a third party which was successful. Thereafter the applicant asked the Court to amend that particular Darkhast by substituting other property for the property therein mentioned which had already been declared to be not liable to be attached. We think that the amendment ought not to have been allowed and that the application must be considered as a fresh application. Otherwise! clearly the provisions of Section 48 of the Civil Procedure Code could easily be evaded, and a Darkhast could be kept alive for an indefinite time.
2. It is necessary, therefore, to consider whether Exhts. 35 and 71, which admittedly are applications for execution made more than twelve years after the date when the decree was passed against defendants Nos. 1 to 4, were in time; and it is contended that limitation runs from the date the plaintiffs' appeal in the High Court against defendant No. 5 was dismissed. That contention could only prevail if the High Court, in dismissing the appeal, could be said to have passed a decree against defendants Nos. 1 to 4 which could be executed. It is not suggested that the High Court confirmed the decree against defendants Nos. 1 to 4 which had already been passed by the lower Court. It merely dismissed the plaintiffs' appeal as against defendant No. 5. It seems to me, therefore, that the decree which is sought to be executed is the decree of the trial Court and no other, and that limitation must run from the date that decree was passed.
3. Various cases have been cited, but I doubt that any of them are really in point. In Mashiat-un-nissa v. Rani I.L.R. (1889) All. 1 a decree for possession of immoveable property was passed not jointly, but severally as against all the defendant? individually and specifically stated the proportions of which they were severally in possession. Two of the defendants appealed, and it was held that the first application for execution of the original decree against those defendants who had not appealed from it, and which was made five years alter the date of the decree was barred by limitation. On the other hand, when a decree is passed in favour of the plaintiff against a particular defendant, and part of the decree i8 appealed against, then no doubt the whole case is before the appellate Court and the decree of the appellate Court will be the decree to be executed.
4. It seems to me this case stands entirely on its own facts, and the plaintiffs, as soon as the decree was passed against defendants Nos. 1 to 4, could have executed it. An application by defendants Nos. 1 to 4 to the appellate Court for stay of execution, because the plaintiffs were appealing against defendant No. 5, certainly would not have been competent. There was nothing, therefore, to prevent the Court executing the decree passed against defendants Nos. 1 to 4 and the date of that decree must be the date from which limitation must run for the purposes of execution. We think the appeal must be dismissed with costs.