Basil Scott, Kt., C.J.
1. The suit in relation to which the execution proceedings now in question have been taken was brought by the plaintiff against the fist six defendants as vendors who denied his title as purchaser and against the 7th defendant as mortgagee from the other defendants to enforce his purchase against the vendors and to redeem the mortgage.
2. The original Court dismissed the suit holding that the plaintiff's title as purchaser was not established as he had not paid the full purchase money and was not ready and willing to perform his contract. The first appeal Court, however, reverse the decree of the original Court and passed a decree that on the plaintiff paying defendants 1 to 6 the sum of Rs. 203-1-8 and paying all cost in the suit within six months from the date of the decree he should be put in possession of the property and should then pay defendant 7 the sum of Rs. 997-8-0 found due on the mortgage with further interest from the date of recovering possession to date of payment on Rs. 633 by annual instalments of Rs. 150 payable in February of each year beginning with February 1912 and that if the plaintiff failed to pay the sum due to the defendants 1 to 6 and costs within six months from the date of the decree he should forfeit his right, to recover possession of the land.
3. None of the parties were satisfied by this decree. The plaintiff within ninety days filed an appeal to the High Court and the two sets of defendants filed separate sets of cross-objections. The decree was, however, confirmed by the High Court and the appeal and cross-objections were dismissed.
4. Within six months from the date of the High Court decree the plaintiff deposited in Court the amount payable by him. The defendant No. 7 then put in an objection that the plaintiff not having complied with the terms of the decree of the first appellate Court his right to recover possession in execution was forfeited.
5. Both the lower Courts have upheld this objection on the authority of Ramaswami Kone v. Sundara Kone I.L.R. (1907) Mad. 28. There is, however, the direct authority of this Court to the contrary: see Nanchand v. Vithu I.L.R. (1894) 19 Bom. 258. It was there said : ' Both parties must be held equally bound or equally benefitted by the result of this second appeal, and if the original respondents would have become entitled to execute the decree of the High Court in case it had reversed the decision of the lower Courts, we do not see any reason Which prevents the present appellant from claiming his right to execute the decree of the High Court in his favour. ' These observations, which were based upon a similar state of facts, are applicable to the present case and the lower Courts should have followed that decision. It was in accordance with a decision reported in Sakhalchand Rikhawdas v. Vel-chand Gujar I.L.R. (1893)18. Bom. 203.
6. The decision of the Madras High Court followed by the lower Courts refers to the judgment of Sir John Edge in Jaggar Nath Pande v Jokhu Tewari I.L.R. (1896) All. 228 which was based upon the express provisions of Section 214 of the Civil Procedure Code applicable in decrees in pre-eption suits, but we do not understand that judgment as throwing any doubt on the Full Bench decision in Muhammad Sulaiman Khan v. Muhammad Yar Khan I.L.R. (1888) All. 257 delivered by the same learned Chief Justice and applied in Sakhalchand Rikhawdas v. Velchand Gujar I.L.R. (1893) 18 Bom. 203 and Nanchand v. Vithu I.L.R. (1897) 25 Cal. 311 or the Full Bench decision of the Allahabad High Court, Shohrat Singh v. Bridgman I.L.R. (1882) All. 376, explained and adopted in Muhammad Sulaiman Khan v. Muhammad Yar Khan (1888) I.L.R. 11 All. 267. The observations of Banerji J. in Bhola Nath Bhuttacharjee v. Kanti Chandra Bhuttacharjee I.L.R. (1897) Cal. 311, referred to in Ramaswami Kanti Chandra Kone I.L.R. (1907) Mad. 28 and relied on by the respondent's pleader before us, were in a case where the decree of the lower Court had been dismissed and not confirmed; and Banerji J. may have had in mind the possible distinction between dismissal and confirmation indicated by Jenkins C.J. in Kailash Chandra Bose v. Girija Sundari Debi. I.L.R. (1912)Cal 925. Of the other cases cited for the respondent, Patloji v. Ganu I.L.R. (1890) 15 Bom. 370 was a case where there was no decision on final appeal but only a dismissal for non-prosecution in the final appeal and similar, therefore, to the decision of the Judicial Committee in Abdul Majid v. Jawahir Lal I.L.R. (1914) All. 350 in which it was held that the time for executing a decree nisi for sale of mortgaged property ran from the date of the High Court decree confirming the decree of the first Court. Aminabi v. Sidu I.L.R. (1892) 17 Bom. 547 was a case where the decree had been legally executed before the appeal and the defendant never applied for a stay of execution or tendered the money payable by him till after the dismissal of the appeal. We also think that the decision in Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh is an authority in the appellant's favour. What has to be looked at and interpreted is the decree of the final appellate Court, in this case the High Court.
7. We reverse the decree of the lower Court, set aside the defendant's objection and remand the plaintiff's application in execution for disposal according to law.