1. This appeal arises out of proceedings in execution and has been referred for decision to a Division Bench because it involves an important question of law.
2. The relevant facts are these. The plaintiff, who is respondent in the appeal, instituted civil suit No. 5-A/46 for possession of certain property and for setting aside certain alienations made by its limited owners. That suit was partly decreed on December 30, 1947. The appellants before us are some of the alienees who were defendants to that suit. They were in possession of some of the property of which possession was granted to the respondent on condition that he deposited Rs. 41,026-12-6. The decree was appealed from both by the appellants as well as the respondent. Their appeals were dismissed on October 31, 1955. It may be mentioned that defendant No. 8 to the suit had also preferred an appeal against the decree of the trial Court in so far as it affected him. That appeal was allowed and the respondent's Claim as against him was dismissed. Therefore, the net result of the appeals preferred before this Court by the parties to the suit was that the decree of the trial Court was modified in so far as it related to defendant No. 8, but was upheld with respect to the plaintiff and other defendants thereto.
3. On October 2, 1956, the respondent made an application for execution of the decree, but he did not deposit any money along with the execution application. He, however, deposited Rs. 32,000 on August 7, 1958, Rs. 3,000 on August 8, 1958, and Rs. 6,026-12-6 on August 16, 1958. Soon after this amount was deposited, defendants Nos. 6 to 8 and the present appellants attached in sill a sum of Rs. 2,407.56 nP. out of the amount deposited by the respondent in execution of the decree for costs which they held against the respondent and in their favour. On October 9, 1958, the respondent deposited a sum of Rs. 2,407.56 nP. in Court 'without prejudice' and thus restored the amount deposited by him for payment to the appellants to the original figure of Rs. 41,026-12-6.
4. The appellants resisted the application for execution on two grounds; firstly, that that application was barred by time, and, secondly, that it was not in accordance with law. Both these grounds were negatived by the Court below and possession of the property which was with the appellants was ordered to be delivered to the respondent along with the standing crops. In this appeal the appellants have reiterated both the contentions raised by them before the executing Court and have also taken an additional contention to the effect that the Court below was in error in ordering delivery of possession to the respondent along with the standing crops.
5. In support of the plea of limitation it is urged by Mr. D.B. Padhye for the appellants, that the decree which was passed by the Court below was a. conditional decree, that to that decree the appropriate article of the Limitation Act which applied was Article 181, that under that article the respondent was bound to apply for execution on the date on which the decree was passed, or within three years of that date, and that the application having been made nearly 9 years after the passing of the decree by the trial Court was barred by time.
6. Reliance was placed by Mr. Padhye strongly on the decision of this Court in Gopal Sattu v. Dnyanu Maruti  Bom. 649, 40 Bom L.R. 512 and Bhuralal v. Jiwansingh . In the first mentioned case the suit was for possession of certain immovable property and was decreed by consent. The decree provided that the plaintiff shall pay to Bayabai a sum of Rs. 350 by January, 1926, that if he failed to do so, the amount was to carry interest at six per cent. per annum and that on payment of that sum the plaintiff was to get possession of the suit property. Thus, under the decree the plaintiff's right to get possession of the property was. conditional on his paying the sum of Rs. 350 to Bayabai. Pending the suit Bayabai had sold the property to the defendant, but since he was a purchaser pendente lite he acquired no independent rights to the property as against the plaintiff. The plaintiff did not pay Rs. 350 to Bayabai or to the defendant nor did he sue out execution. On July 8, 1930, however, he filed a suit against the defendant for possession of the property. The suit was dismissed by the trial Court on the ground that it was barred by the provisions of Section 47 of the Civil Procedure Code. In appeal the District Judge reversed the decision of the trial Court and decreed the suit subject to the plaintiff paying to the defendant a sum of Rs. 350. The decision of the District Judge was based upon the view taken in Basappa Budappa v. BMmangowda Shiddangowda I.L.R. (1927) Bom. 208, 30 Bom L.R. 102 that an alienee pendente lite is bound by the result of the suit although he is not a party to it, and that a separate suit can lie against such an alienee to recover possession of the property. The defendant, thereupon, came up to this Court in a second appeal. This Court held, following the decision of the Privy Council in Parmeshari Din v. Bam Charan : (1937)39BOMLR1019 , pc, that the transferee of the defandant pendente lite is a representative of the defendant, and that being so, the decree must be enforced against him in execution and not by a separate suit. Then it was contended before this Court on behalf of the plaintiff that the suit could under Sub-section (2) of Section 47 be treated as an application in execution. Dealing with this plea Beaumont C.J., who delivered the judgment of the Court, observed (p. 654):-.We should be very ready to treat this suit as an application if we have jurisdiction to do so. But the objection is taken that if we treat this suit as an application, the application is barred by limitation. Article 182 of the Indian Limitation Act provides that for the execution a decree or order of any civil Court the time is to be three years from the date of the decree or order, and then various alternative dates are given in the case of different forms of decrees. None of those alternatives apply to the present case, which is a case of a decree upon a condition. Where you have, as here, a decree for possession on the payment of a sum on a future date, I do not think that the provisions of Article 182can have any application. It seems to me impossible to say that the date of the decree is the starting point of time, because the future date on which the decree is to become executable may be more than three years from the date of the decree. I, therefore, think that Article 181 is the article applicable to such a case and it was so held by the Allahabad High Court in Shiam Lai v. Sohan Lal iL.R. (1927) All. 290. Under Article 181 limitation runs from the time when the right to apply accrues. It is argued here that the right to apply for execution of this decree did not arise until the sum of Rs. 350 with requisite interest was paid or tendered, and inasmuch as the sum has not been paid up to the present time or tendered, it is said that limitation has not yet begun to run.... It seems to me that the plaintiff's right to enforce the decree arose probably on the day of the decree, because there was nothing in the decree to prevent him paying the paying the Rs. 350 at once. But at any rate it arose in January, 1926, when the sum was payable, and he had an absolute right to enforce the decree on payment of the amount. The execution of most decrees necessitates the possession of a certain amount of money, and it is impossible to say that a decree is not executable because the plaintiff has not got the money necessary to enable him to execute it. I think we are bound to hold that this decree could have been executed by the plaintiff at the latest in January, 1926, and as the suit was not filed until July, 1930, an application in execution would have been out of time. That being so, we cannot treat this suit as an application.
Upon this view, this Court dismissed the appeal.
7. Now, Mr. Padhye, while conceding that the decree was a consent decree and that it specified the date on which money was to be paid by the plaintiff to the defendants relied strongly on the observations of the learned Chief Justice that the plaintiff's right to enforce the decree arose on the day of the decree because there was nothing in the decree to prevent him from paying at once the amount stated in the decree. He says that the plaintiff who has obtained a decree of this kind in his favour cannot be permitted to extend the period of limitation by his own inaction in depositing money which he was required to deposit. It is true that these observations of the learned Chief Justice do lend some support to Mr. Padhye's contention, but we must point out that they are, in fact, obiter and that the substantial ground upon which the decision of that case rested was that a sum of money which the plaintiff was required to pay became payable at a specified point of time and, therefore, the Provisions of Article 182 could not apply to the application for execution. There is, however, one important point or distinction between that case and the present one. The point is that an appeal was preferred from the decree of the trial Court making the deposit of a certain sum of money as a condition for obtaining possession of the suit property. Now, item 2. in col. 3 of Article 182 of the Limitation Act provides that where there has been an appeal from a decree the date from which the period of limitation begins to run would be the date of the final decree or order of the appellate Court. Mr. Padhye, however, points out that whereas six different points of time from which limitation commences to run have been set out in Article 182 only one point of time is set out in Article 181, which is ''when the right to apply accrues', and that as the decree was a conditional decree, the application for execution must be governed by that article despite the fact that an appeal had been preferred and not by Article 182. It is in support of this particular part of the argument that Mr. Padhye strongly relies upon the decision of the Rajasthan High Court.
8. Normally the article which is applicable to an application for execution is Article 182 and it is only in those cases where for some reason that article does not apply that Article 181.whichisa residuary article, can be pressed in aid. Where the question is whether the main article or the residuary article applies, what the Court must do is to determine whether any of the starting points in Article 182 is applicable to the particular application for execution. If none of these starting points is applicable then only the Court can resort to Article 181. Now, applying this test we at once find that one of the starting points is applicable to the present ease and, therefore, it is Article 182 that will be attracted and not Article 181.
9. Mr. Padhye, however, says that for applying this test what we have to look to are the circumstances which existed when the decree was passed and not those which came into being subsequently. Indeed, had the question been of executing the decree of the trial Court then regard would have had to be had only to the circumstances which obtained when that decree was passed and in the light of those circumstances it would have to be held that the application for execution of the decree originally passed would be governed by Article 181 on the basis of the decision of this Court. But after an appeal is filed a change in circumstances does occur. Where such change occurs then the appropriate article to apply would be Article 182. Indeed, even in the Rajasthan case, on which reliance was placed by Mr. Padhye, the learned Judge held that the maximum period which could be allowed to the plaintiff to deposit the amount required to be deposited under the decree before obtaining possession of the property was three years from the date of the appellate decree, even though the learned Judge has held that the appropriate article to apply is Article 181.
10. It is no doubt true, as held by their Lordships of the Privy Council, Maharaja of Darbhanga v. Homeshvar Singh that for Article 182 of the Limitation Act to apply the decree sought to be enforced must be in such a form as to render it capable in the circumstances of being enforced. Therefore, where a decree provides that the right to obtain possession thereundre is conditional upon the payment of a certain sum of money by the plaintiff to the defendant, the application for execution will not be governed by Article 182 of the Limitation, the Act. In such circumstances the residuary article, i.e. Article 181 must, there for apply.
11. But it must be borne in mind that their Lordships were not dealing with a case where an appeal had been preferred from the original decree and execution was sought within three years of the appellate decree. Mr. Padhye, however, says that this should make no difference in a case where an appellate Court merely confirms the decree of a trial Court. It must however be borne in mind that where there has been an appeal from a decree, it is the [decree of an appellate Court which is the final and ultimate decree of the Court, and it is that decree alone which could be executed. See Jowad Hussain v. Gentian Singh I.L.R. (1926) Pat. 24 Therefore, whether an appellate court modifies or sets aside a decree of a trial Court or merely affirms it, the latter decree must be deemed to have merged in the decree to the appellate Court. It 'cannot be disputed that there can but be only one decree in a suit and, therefore, the only decree of which execution is permissible is the final or the ultimate1 decree passed in that case. The period of limitation for executing such a decree must necessarily commence after that decree came into being and not from a date anterior thereto. We are accordingly of opinion that on general principles, quite apart from the provisions of item 2 in col. 3 of Article 182, where execution is sought of a decree passed in a suit in which an appeal has been preferred and decided the starting point of limitation would be the date-of the appellate decree. It would follow from this that even though Article 181 of the Limitation Act applied to an appellate decree, the deposit of the amount having been made by the respondent within three years of that decree and the execution application having also been made during this period, it will not be barred by time. Of course, if Article 182 applies to this case, then no question of limitation would at all arise. Looking at the matter either way, the respondent's application for execution must be held to be within time.
12. Mr. Padhye then contended that the respondent's application was not accompanied by the deposit and was consequently not in accordance with law. Now,. an application for execution will be deemed to be in accordance with law provided it complies with the requirements of Order XXI, Rule 11, Civil Procedure Code. Mr. Padhye frankly conceded that all the requirements of that rule were satisfied by the respondent, but he says that it was not open to the Court to grant relief to him because he had not deposited the amount of Rs. 41,000 and odd, which the decree made it obligatory upon him to deposit before being entitled to be in possession of the suit property. It seems to us that there? is a distinction between a case where an application is liable to be dismissed on the ground that it is not in accordance with law and one where it is liable to be dismissed on the ground that the decree-holder is not entitled to obtain any relief because of non-compliance with the condition laid down in the decree sought to be executed.
13. Mr. Padhye referred us to a decision of this Court in Gopal Parsharam v, Damodar Janardhan : AIR1943Bom353 in which it has been held that 'not in accordance with law' cannot be construed so as to mean 'not in accordance with law on the-face of the application,' but must have some reference to the material content, apart from the form and formal content of the application for execution. The question in that case was whether the execution application was within time by reason of the fact that the decree-holder had made some previous applications for execution. It would appear that in those previous applications for execution the decree-holder had asked for a relief which was not within the power of the Court to grant and, therefore, the learned Judges who decided the case held that those execution applications did not help the decree-holder. In coming to this conclusion the learned Judges had relied upon, among other decisions, two decisions of this Court, Nathubhai Kasandas v. Pranjivcm Lal-chand I.L.R. (1909) Bom. 189, 12 Bom L.R. 13 and Bando Krishna v. Narsimha. I.L.R. (1912) 37 Bom. 42, 14 Bom. L.R. 861. In one of those cases the learned Judges held that if a person, other than one entitled to apply, applies for execution, or if the person entitled applies for execution in a mode and for a relief outside the decree, the application is not in accordance with law. The reason given by one of the learned Judges (Chandavarkar J.) was that the decree of which execution is sought is not in reality the decree to which the application professes to relate but some other decree, one not existing, and, therefore, incapable of execution according to law. The learned Judge then pointed out that where on the other hand a decree gives certain reliefs and the application for execution seeks some or all of them, it may happen that after going into the merits of the application and considering all the circumstances and equities of the case, the Court comes to the conclusion that the particular relief or reliefs sought shall not be granted. In such a case the decision of the Court on merits cannot affect the application for the purposes of the question whether it is in accordance with law, provided it meets in substance the requirements of the Code of Civil Procedure or any other law relating to execution. Batchelor J., who was the other Judge constituting the Division Bench, held that if the applying complies with the forms and the procedure prescribed in that behalf that applying was in accordance with law, and not the less so because on the merits of the application, whether for one reason or another the application had to be refused. The learned Judge thought that the words 'in accordance with law' were an adverbial qualification of the word 'applying'. He was of the opinion that it is not even an application but it is the applying-which must be in accordance with law. As pointed out in Gopal Parsharam's case by Sen J., the distinction is extremely subtle. But with this aspect of the matter we are not concerned.
14. What has to be borne in mind is that according to both the learned Judges there is a distinction between a case where an execution application is liable to be dismissed on the ground that it is not in accordance with law and one-where it is liable to be dismissed on the ground that in the particular circumstances of a case a decree-holder is not entitled to a relief. Two more cases were cited by Mr. Padhye, but they also proceed on the view that the relief which the decree-holder sought was outside the decree or beyond the power of the jurisdiction of the Court to grant. That is not the case here. The relief which the respondent sought was clearly one which was awarded by the decree and the executing Court had jurisdiction to grant it. It is true that before being put in possession the respondent was required to deposit a certain sum of money, but that is entirely a different matter. If ultimately the respondent failed to deposit the amount within the time allowed by the Court, then the Court would be entitled to dismiss his application, but it certainly could not do so simply on the ground that the amount was not put in along with the application for execution.
15. Then Mr. Padhye contended that there was no proper and valid tender of a sum of Rs. 2,407.56 nP which was deposited by the respondent 'without prejudice' on September 10, 1958. We do not understand what Mr. Padhye means by saying that depositing an amount without prejudice by a party cannot be regarded as a proper deposit in law. He referred to the provisions of Section 38 of the Contract Act but those provisions have nothing to do with a question of the kind which we have here. What Section 38 provides is that where a promisor has made an offer of performance to the promisor and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the Contract Act. Then it provides that every such offer must fulfil certain conditions of which one is that it must be unconditional. Here, we are concerned with the execution of the decree and not with the performance of a contract. Where a person deposits a certain sum of money because he is required to do so by a Court or because a decree prima facie requires him to do so, he cannot be deemed to be making an offer to anyone. He only discharges an obligation resting on him, and if while making a deposit he says that there is no obligation upon him, it cannot be said that he has failed to comply with an order of a Court or the prima facie requirements of a decree. What is of the essence is the depositing of the amount. If he actually makes it within the time allowed by law or by the Court, the deposit is a good one, whether it is conditional or otherwise, and cannot be ignored or said to be no deposit at all in law just because it is conditional. We, therefore, overrule Mr. Padhye's contention.
16. Finally, Mr. Padhye said that the respondent had sought possession of the fields without standing crops, but the lower Court granted him possession along with the standing crops, and that this was clearly illegal. In column 10 of the execution application 'nature of help required from the Court' the respondent has not made an express prayer that he should be given possession along with the standing crops. No doubt, what he asked for was possession only and in fact there were crops standing on the land when the application was made.' But we are really not concerned with the crops then standing because the order of the Court below was made almost two years after the execution application was filed and the crops which were standing when the execution application was made have long since been removed. The respondent, however, demanded possession of the standing crops specifically in a later application. He made that application on August 18, 1958, i.e. after he deposited the full amount which the decree had ordered him to deposit as a condition precedent to the obtaining of the possession. In that application he prayed for the issue of a warrant of possession with crops standing on the land. In reply to that application the appellants stated that they had spent Rs. 6,138-9-0
for preparing the soil and cultivating and sowing and doing other agricultural operations in the fields.
In reply to this application the respondent stated that the amount claimed is highly exaggerated and not admitted and further stated as follows:-
But in order to save trouble and time of ascertaining these expenses the decree-holder submits that possession be given of 91-11 acres of land after the crops are taken out by the judgment-debtors. They should not hereafter make any expenses or sow fresh crop so as to disentitle the decree-holder to claim possession for want of crops.
Dealing with this matter the learned Judge has directed in para. 12 of his order an enquiry into the expenses which the appellants had incurred and directed the respondent to deposit a sum of Es. 2,000 for payment to the appellants pending enquiry and further directed the issue of a warrant of possession in favour of the respondent. The result of this order was that the respondent was entitled to immediate possession of the land i.e. along with the standing crops. He, however, did not get such possession because of a stay order passed by this Court. It is common ground that the appellants have removed the crop. Mr. Nandedkar, therefore, says that since the respondent did not get any standing crop, the amount of Rs. 2,000 which the respondent was required to deposit should be refunded to him and that he should be awarded immediate possession. In view of the fact that the respondent did not get possession of the land along with the standing crops, there is no doubt whatsoever that he is entitled to get back the amount of Es. 2,000 which he had deposited in the Court below.
17. Then Mr. Nandedkar said that if the appellants placed the respondent in immediate possession of the property, he would be willing to give up his claim for the accounts of the crops realized by the appellants during the agricultural year 1958-59. It is, therefore, open to the appellants to avail themselves of this offer by delivering possession of the land to the respondent without delay. However, we cannot make any specific order with regard to this aspect of the matter.
18. For all these reasons we dismiss the appeal with costs.