1. The facts underlying this letters patent appeal are set out in 30 Bom. L.R. 1149, a decision to which I was a party, and which was made on July 3, 1928.
2. The respondent had sold the appellant survey No. 108, pot Nos. (1) and (2) of Usmanpur, in the south Dascroi Taluka of the Ahmedabad District, for Rs. 19,000. The title conveyed by the respondent was clouded and litigation ensued between the parties to the transaction. The original Court refused to set the sale aside, but put the parties to terms, the principal ones being that the respondent should return Rs. 1,000 of the price, and execute a conveyance in appellant's favour containing certain indemnity clauses, the conveyance to be executed within two months of the decree, which was made on October 24, 1924. Execution proceedings under this decree were initiated on December 2, 1924. While they were still pending and after Rs. 1,000 and the sum due for costs had been paid into Court and received by the appellant, as to the Rs. 1,000 under protest, an appeal was filed in this Court. The proceedings for execution were not stayed pending appeal, though a rule was issued by this Court, but in fact they were stayed, probably under a misapprehension by the original Court. The original Court's decree was virtually confirmed by this Court, subject to two modifications, the first being making the covenant for transfer of the indemnity specified in Clause 2 (a) of para. 15 (a) of the Subordinate Judge's judgment cover an indemnity against the plaintiff having to pay the amount with any interest thereon, and altering the time fixed for performance to within two months of the High Court's judgment.
3. Nothing happened in the Court below till September 24, 1928, when the respondent put in an application now Exhibit 12. This document stated that the original Court's decree had been confirmed, and that the pending execution proceedings should therefore be further proceeded with. It also sought an amendment of the prayer clause, being an addition of the claim for costs in the High Court,
4. On it, an exparte order that the application should proceed was made. Next, on November 9, 1928, the appellant made an application praying that the application for execution should be dismissed, on the ground that it had been made under the original Court's decree, which had been superseded by that of the High Court, and that a fresh one was necessary. The order on this was that as Mr. Shah, the pleader presenting it, did not insist on it, it was rejected, and that he was meanwhile given a fortnight's time to consider the draft. On December 3, 1928, the appellant made a second application to the effect that the terms of the High Court's decree had not been complied with, and that he was entitled to the alternative provided in the decree, the return of the price of Rs. 19,000 he had paid on account of the respondent's failure to comply with the conditions which were imposed on him. This application was rejected on the day it was made, on the ground that Rs. 1,000 required had been paid and taken by the appellant and that a draft conveyance had been submitted in time, though its approval had been delayed. A further fifteen days' time was granted to the applicant within which to approve the draft.
5. All three of these orders were appealed against. The appeal was originally rejected summarily, but was admitted as an appeal under the Letters Patent by a division bench of this Court. The appellant's counsel's main and really sole point is that when once the matter had been dealt with by the High Court, its decree was the only one which could henceforth be executed, and that a fresh application for execution had become necessary, as the original one was spent, and that in any case the proceedings in the original application having only been revived after the interval of two months allowed by the High Court's decree, could not be entertained. I think that this contention must prevail.
6. The principle relied on by Mr. Thakor is, that when once an appellate decree is passed, whether it confirms, varies or reverses that of the original Court, it is the only decree which can be executed, for it has boon substituted for that of the original Court.
7. In support of the argument the following reported cases are relied on:-Sakhalchand Rikhawdas v. Velehand Gujar I.L.R. (1893) 18 Bom. 203; Nawhand v. Vithu I.L.R. (1894) 19 Bom. 258 Satwaji Balajirav v. Sakharlal Atmaramshet I.L.R. (1914) 39 Bom. 175 Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) All. 641 Muhammad Sulaiman Khan v. Muhammad Yar Khan I.L.R.(1888) All. 267 Darubhai v. Bechar I.L.R. (1924) 49 Bom. 305 Luchmwn Persad Singh v. Kishun Persad Singh I.L.R. (1882) Cal. 218 Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1900) L.R. 27 I. A. 209 and Krishna Lal Burman v. Satyabala Debi I.L.R. (1923) Cal. 342. Though most of these cases turn on questions of limitation, the principle is clear and it applies to the facts here. Technically, I believe a fresh application for execution should have been made. Since, however, the facts are peculiar and the execution proceedings were not stayed by this Court, though actually they were held up till the decision of the appeal, I have considered whether what happened could not be held to be a revival of the old proceedings, amounting substantially to a fresh application. The original Court's decree had, to a certain extent, been complied with. The Es. 1,000 payable under it had boon furnished and a draft had been submitted for plaintiff's approval. To be a revival, amounting substantially to a fresh application, the respondent's one of September 24 should have asked for a fresh number, and complied with the requirements of the form where there has boon an appeal, and should have prayed for proceeding in the exact terms of the High Court's decree. It is true that it did not take this form; but these being matters of error in procedure, Section 99 might have been had recourse to. The provisions of that section have, it is true, been appealed to by the respondent's learned counsel on the ground that whatever errors, defects or irregularities there were, did not affect the merits of the case.
8. There is, however, one element which, does affect the merits, in my opinion, being, that whatever the merits of respondent's application of September 24 may have amounted to in substance, it was not made in time. According to some of the rulings already quoted, the respondent could have ; complied with the High Court's decree, had it not in terms given him two months within which to do so, for that period had been allowed by the original Court's decree, which was confirmed. But the condition was also specifically stated in the High Court's decree.
9. Not having complied with this condition, which, I think, was an essential one, though the learned counsel has urged that the time could have been got extended by a review, I believe the respondent has lost the rights conferred upon him by the decree, and that the parties are now relegated to the alternative it provides. The appeal must be allowed with coats, the original Court's order of September 24, 1928, must be set aside and the present execution proceedings must be dismissed with costs. It will be for the other side to apply for the relief granted them in the alternative in the High Court's decree. The rule is discharged.
10. This is an appeal under the Letters Patent from a decision of Mr. Justice Baker, summarily dismissing the plaintiff's appeal from certain orders of the First Class Subordinate Judge, Ahmedabad, in Darkhast No. 931 of 1924.
11. The material facts are as follows. Defendant sold two plots of land, Survey No. 108, pot Nos. 1 and 2, to plaintiff. The title to one plot, S. No. 108 (2), was defective, and plaintiff filed a suit, No. 415 of 1922, to recover the purchase money with interest. The Court refused to set aside the sale, and passed a decree in the following terms, on October 24, 1924 :-
If the defendant within two months from this date (1) pays into Court Rs. 1,000 as damages to be paid to the plaintiff for the defect in title still existing in respect of No. 108 (2), and
(2) Passes or takes out proceedings in execution of this decree for passing a proper conveyance at his sole expense to the plaintiff
[on certain terms set out in detail in the decree, but not now material], and
(3) Pays plaintiff's costs in Somnath's suit [that was a suit filed by a person claiming an interest in the property],
(4) Pays the full costs of plaintiff in this suit,
the conveyance exhibit 42 shall stand affirmed and continue to operate.
If the defendant fails to act as aforesaid, the conveyance Exhibit 42 shall stand rescinded and the defendant shall pay Rs. 10,000 and plaintiff's costs of this suit, to the plaintiff and obtain a reconveyance at his own expense of both the plots 108 (1) and (2) as described in the plaint and recover their possession from the plaintiff.
12. On December 2, 1924, defendant riled darkhast No. 931 of 1924, depositing Rs. 1,000 for payment to plaintiff. On December 22, 1924, he produced a draft conveyance. On January 16, 1925, which was the date fixed for return of the notice, plaintiff took the Rs. l;000 out of Court, without prejudice.
13. Proceedings then dragged on for a year without anything material being done, owing to objections raised by plaintiff' to the draft conveyance and other reasons. In the meantime plaintiff presented an appeal to the High Court. On January 25,1926, there is an entry in the roznama of the darkhast that proceedings were stayed by the High Court, but it appears from the record of this Court that only a rule was issued, -without stay. On July 3, 1928, the plaintiffs appeal was disposed of by Fawcett Ag. C. J, and Murphy J. (the decision is reported in 30 Bom. L. E. 1149). The operative portion of the appellate Court's decree was:-
For the reasons stated in the accompanying judgments, the Court alters the decree of the lower Court in two points, (1) by making the covenant for transfer of the indemnity specified in Clause (ii) (a) of para. 15 (a) of the Sub-Judge's judgment cover an indemnity against the plaintiff having to pay the amount with any interest thereon, and (2) by altering the time fixed therein from ' We months from the date of that decree ' to ' two months from the date of this judgment,' Subject to these two clauses, the Court confirms the decree, of the lower Court and dismisses both the appeal and the cross-objections with costs.
14. The rule issued at the time of the admission of the appeal was at the same time discharged.
15. On September 2, 1928, that is, two months and twenty-one days from the date of the appellate decree, defendant made the application Exhibit 12 in the original Darkhast No. 931 of 1924. In this he stated :-
The above matter has been stayed until the appeal made by the plaintiff to the High Court has been decided. The said appeal has been already decided in the High Court on July 3, 1928, wherein the order of the lower Court has been confirmed. Therefore the said darkhast may be proceeded with further. It is particularly prayed that Bs, 382 being the amount of costs awarded to ma by the High Court may be caused to be paid to me by the plaintiff and the following addition may he made in the prayer clause of the darkhast :-Rs. 382 being my costs in the High Court may be caused to be paid to me by the plaintiff and if the plaintiff does not pay the same to me the said amount may be caused to be paid to me by attachment and sale of his moveable property, I produce herewith a copy of the High Court's decree.
16. On this application the Subordinate Judge passed an order :-r-' The darkhast may be proceeded with further.' Then, on November 9, 1928, plaintiff' presented the application Exhibit 16, in which he contended as follows :-
I, plaintiff, preferred an appeal from the decree of this Court to the Honourable the High Court and that decree has been varied in some respects in the appeal. Therefore the defendant must give a fresh darkhast in accordance with the said decree of the High Court. The present darkhast having been given on the strength of the decree of the lower Court cannot be maintained. So also a document cannot be executed in accordance with the draft produced by him. On the defendant giving the draft to me according to the decree of the Honourable the High Court I am willing to have a document executed. Without doing that the defendant has attempted to proceed with the old pending darkhast. That cannot be done and a document cannot be executed in accordance with the present draft. I pray to the Honourable Court that this darkhast having been given on the strength of the decree of the lower Court of the year 1924, and the said decree having been modified or varied by the appellate Court, this darkhaet carrect be maintained. And it is requested that the darkhast may be dismissed with costs.
17. According to a note made by the Subordinate Judge below this application, on the same date, November 9, 1928, it was not insisted on by the pleader who appeared for the plaintiff' on that occasion, and so it was rejected, and plaintiff was given a fortnight's time ' to look over the draft'. On December 3, 1928, another application, Exhibit 20, was made on behalf of the plaintiff, in which, after re-stating the facts, he now claimed to be entitled to recover back the sum of Rs. 19,000 which he had paid to the defendant, on the ground that the latter had failed to execute a legal document within the two months allowed in the decree of the High Court. The order passed on this application was as follows:-
Not only has the defendant paid Rs. 1,000 during the period provided in the original decree of this Court but the plaintiff' admits now before me that he has taken the amount. The defendant has filed this darkhast and submitted a draft of the deed to be passed by him to the plaintiff long before the two months mentioned in the appeal decree. The draft is not being approved by the applicant plaintiff from time to time. The matter was then pending the appeal on stay. From time to time plaintiff is being given time to approve the draft. Of course in the draft the addition made by the High Court decree will have to be included. I think this application of the plaintiff' is not proper and I therefore reject it with costs. I may mention that the point that it is the High Court decree alone which is executable was not insisted on last time : see order on Exhibit 16. I still grant farther time of a fortnight to the plaintiff to approve the draft.
18. Plaintiff then appealed to the High Court against the three orders of the Subordinate Judge dated September 24, 1928, November 9, 1928, and December 3, 1928, respectively, and those are the orders the propriety of which we have now to consider. When the appeal was admitted an order was made staying the execution proceedings 'after the stage of the approval of the draft sale-deed before the lower Court now.' This order was received by the lower Court on March 5, 1929, and on March 12, 1929, the Subordinate Judge himself made certain amendments in the draft sale-deed (that in the draft which had been produced by the defendant, as stated above, on December 22, 1924), and marked it as approved.
19. The learned counsel who appeal's for the plaintiff-appellant in this appeal contends, firstly, that a fresh darkhast ought to have been filed to execute the decree of this Court, and that a mere application to continue the original darkhast was not sufficient; secondly, that in any case the decree of this Court was not complied with and the amended draft conveyance was not put in within the two months allowed for the purpose; and, thirdly, that the putting in of a draft conveyance on December 22,1924, that is only two days before the expiry of two months from the date of the original decree, was not a sufficient compliance even with the decree of the lower Court.
20. There is, in my opinion, little force in either the first or the third of these contentions. No doubt on a strict construction of the authorities cited before us it would appear that, as the decree of the appellate Court was the only decree capable of execution, there should have been an application for the specific purpose of executing that decree, and not merely a revival of a previous application for execution of a decree which had become incorporated in the decree of the appellate Court. But so far as the heading or description of the application is concerned, that may be considered to be a mere technicality and not a matter of substance: and if an application for execution had been made within the time allowed by the High Court's decree I should have been prepared to treat it as substantially an application for execution of that decree, in spite of its being erroneously described as a revival of previous proceedings. As regards the third point, what the defendant was required to do by the decree of the original Court was to pass a conveyance or take proceedings in execution for passing a conveyance, within the period of two months. Within-that period he did put in a draft conveyance, and it cannot be fairly argued, I think, that he was obliged to do more than that.
21. On the other hand, to the contention that the defendant has not complied with the decree of this Court there seems to me to be no satisfactory answer. When there has been an appeal against a decree, whether the decree be merely confirmed, or confirmed with modifications, or reversed, the decree of the appellate Court is legally the only one which can be executed. That proposition is, in my opinion, clearly established by the authorities to which we have been referred by the learned counsel for the plaintiff: Sahhalchand Rihhaiodas v. Velchand Gujar I.L.R. (1893) 18 Bom. 203 Nwaehand v. Vithu I.L.R. (1894) 19 Bom. 258 ; Satwaji Balajirav v. Sahharlal Atmaramshet I.L.R. (1914) 39 Bom. 175 Durubhai v. Bechar I.L.R. (1924) 49 Bom. 305 Muhammad Bulaiman Khan v. Muhammad Tar Khan I.L.R. (1888) All. 267 Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) All. 641 Lnchmun Persad Singh v. Kishun Persad Singh I.L.R. (1882) Cal. 218 Krishna Lal Burman v. Satyabala Deli I.L.R. (1923) Cal. 342 and Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh . It is true, as the learned counsel for the respondent has pointed out, that in many of these cases the Court was dealing with a question of limitation. But that was not so in all of thorn, and the question with which we have to deal is in a sense a question of limitation, though not under the statute. Whatever the particular point before the Court was, the ratio decidendi was the principle above stated, and there is nothing inconsistent with that principle in the solitary case quoted on the other aide : Qamar-ud-din Ahmad v. Jawahir Lal I.L.R. (1905) All. 334
22. Applying the principle to the present case it seems obvious that within two months from July 3, 1928, the date of the decree in appeal, the defendant was bound to apply to the executing Court and place before it a draft conveyance embodying the alteration made by the appellate Court. As I have already said, a technical error in the description of the application would not have matter-3d, if the terms of the final decree had been complied with in substance. An application to proceed with the former darkhast, if made within the two months, might have been treated as an application for execution of the final decree. It would not have been essential, I think, to put in an entirely fresh draft of the conveyance. A request to the Court to amend the draft previously put in, in the manner directed by the High Court, would have been sufficient. But what actually happened was that the defendant did nothing' at all within the two months, allowed by the High Court for taking proceedings. Three weeks after the expiry of the period he applied asking that the darkhast might be proceeded with, and that he might be given his costs in the High Court, but that was clearly too late. Even then, apparently, he did not move the Court to amend the draft conveyance in accordance with the final decree; and even if we can assume that, when the Subordinate Judge ultimately amended the draft accordingly, he was moved to do so by the defendant, that was not done till more than eight months after the decree. As the learned counsel for the respondent quite rightly says, the question is whether the defendant did his best to comply with the conditions imposed by the High Court. He wishes us to answer the question in the affirmative on the ground that the defendant had already deposited the money and put in a draft conveyance. But it seems obvious that these steps in execution of the original decree, taken long before the appeal was decided or even filed, cannot be regarded as a complete compliance with the terms of the appellate decree, which, as above stated, modified the original decree in a not unimportant respect. I cannot agree with the proposition that the defendant was entitled to suppose that he had substantially complied with the decree already.
23. Nor can I accept thy view that Section 99 of the Code of Civil Procedure affords the defendant any assistance). It is there provided that ' No decree is to b'3 reversed ... on account of ... any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the- case or the jurisdiction of the Court.' Seeing that the matter of the purchase of this property had been held up for some eight years, time was, so to speak, of the essence of the transaction, and delay in complying with the conditions imposed by the decree must, in my opinion, certainly be held to ' affect the merits of the case.'
24. While feeling a certain amount of sympathy with the defendant under the circumstances, I am unable to see on what ground it can possibly be held that he is entitled to any relief under the first part of the decree of October 24, 1924, which was incorporated in the decree of the High Court. Ha has ' failed to act as aforesaid,' and the consequence stated in the second part of the decree must followed.