Chandra Reddy, C.J.
1. The subject matter of all these appeals is a final decree which was put in execution by respondent 1, the decree-holder.
2. The circumstances culminating in these appeals may be briefly stated. The first respondent laid an action for partition and separate possession of his properties in O. S. No. 51 of 1939 on the file of the Subordinate Judge's Court, Amalapuram. A preliminary decree was passed on 26-2-1941. Appeals were preferred to the High Court of Madras in A. S. Nos. 118 and 248 of 1941 against this preliminary decree which ultimately ended in a compromise and a preliminary decree dated 8-4-1943 was passed in terms of the memorandum of compromise filed by the parties. Pursuant to this com-promise, the plaintiff filed a petition for the appointment of a commissioner to divide the out standings due to the family as per the schedule attached to the com-promise decree and the Court appointed a Commissioner, who submitted a report dividing the out standings. After hearing the objections of the parties, a final decree was passed by the trial Court on 13-8-1947. Among the several directions was the one embodied in Clause 3 of the final decree enabling the plaintiff to recover Rupees 22,821-4-3 being his half share of the outstandings as per schedules V and VI attached to the written statement, with interest at six per cent per annum from 1-4-1943 till date of payment. It is unnecessary for us to refer to the other terms of the decree, as nothing turns upon them.
3. The aggrieved defendants preferred an appeal against this decree. The High Court made changes in regard to several terms of the decree by its judgment and decree dated 29-11-51 in A. S. No. 715 of 1947. The only modification that has a significance in this enquiry is that contained in Clause 5 of the High Court's decree, which is in these words:
'That Clause 3 of the decree of the lower Court be and hereby is deleted and that in respect of the following two Hems of expenses, namely, (1) Court's costs, fees 8 voluntary (sic) amounting to a sum of Rs. 4,872-11-6 and (2) Fees for petitions Rs. 400/- the Subordinate Judge, Amalapuram, do enquire and ascertain what is properly debitable for expenses for collection of the outstandings and also having regard to what is contained in para 4 supra, he shall ascertain the correct amount due to the plaintiff from the defendant for the plaintiff's half share of the outstandings collected and calculate interest at six per cent per annum on the amounts so payable by the defendants to the plaintiff continuously from 1-4-1943 till date of payment in accordance with the observations and directions contained in the judgment herein and frame Clause 3 in accordance with his finding and incorporate the same as Clause 3 of the decree of the lower Court.' '
4. It is with the scope and ambit of this clause that we are here concerned. This clause makes it abundantly clear that the High Court while setting aside part of the final decree of the trial Court, has directed it to enquire afresh into the items enumerated therein and determine the amounts due to the plaintiff after affording opportunity to the parties to adduce evidence, in the light of the observations contained in its judgment,
5. In consonance with this direction, the plaintiff filed I. A. No. 877 of 1952 for the passing of an amended final decree after holding an enquiry into the matter as directed by the High Court. After an elaborate enquiry, the Subordinate Judge parsed a modified final decree on 21-1-1958, That decree is in these words:
'that the plaintiff do recover from the defendants a sum of Rs. 19,835-3-8 (rupees twenty-thousand eight ninety one annas seven and pies eight as admitted by the defendant in ground No. 3 of the appeal grounds inA. S. No. 715 of 1947 on the file of the High Court, Madras, minus Rs. 10564-0 being the half share debitable in respect of expenses of collection of outstandings as per the consent memo dated 9-1-1958, filed by both the parties), being the half share of the outstanding as per schedules V and VI attached to the written statement of 1st defendant with interest thereon at 6 pet cent per annum from 1-4-1943 till date of realisation.'
Subsequently two more I. As. were filed for amendment of this decree to include certain sums left out in the final decree and for other purposes which need not be stated here and they were accepted by the Subordinate Judge.
6. Thereafter, the plaintiff levied execution of the decree as finally amended in 1953 claiming a sum of Rs. 31,262-8-3. This figure was arrived at after giving credit to a sum of Rs. 20,000/- paid by the judgment-debtor as required by the order of the Madras High Court in C. M. P. No. 6615 of 1947 as a condition to the grant of stay at execution of the decree. The judgment-debtor deposited the sum of Its. 20,000/- in two instalments of Rs. 10,000/- each, one on 1-4-1943 and another on 164-1948.
7. The execution petition was resisted by the judgment-debtor on the ground that it was barred by limitation as it was filed more than three years of the making of the appellate decree i.e., on 29-11-1951.
8. This objection did not find favour with the trial Court with the result that it directed execution to proceed. Aggrieved by this decision, the judgment-debtor filed these three appeals.
9. A common contention is urged in all these appeals, namely, that for purposes of limitation time has to be calculated from 29-11-1951 as that was the date of the decree of the High Court and the date on which the Subordinate Judge subsequently modified the decree would not furnish period of limitation since the Subordinate Judge merely incorporated the re-constituted Clause (3) of the decree of the High Court. Even assuming that the decree as regards the outstandings could not be executed till the ascertainment of the outstandings that would fall to the share of the plaintiff, still time has, to be reckoned from 29-11-1951 as the other part of the original decree was executable. Since a decree is indivisible for purposes of execution limitation commences on the date on which execution could be levied in regard to the portion of the decree continues the learned counsel for the appellant.
10. In support of his contention, the learned counsel places reliance on Gopalakrishnayya v. Bhosayya, 1954-1 Mad LJ 462. That was a suit to recover possession of lands in the occupation of the respondents with mesne profits. The suit was opposed on the objection that the lands formed part of an estate with occupancy rights Inhering in the defendants and that It was no! competent for the plaintiffs to maintain the suit In the Civil Court. These pleas were negative by the District Munsif and the suit decreed and this was affirmed on appeal by the Subordinate Judge, Masulipatnam. But a Bench of the Madras High Court which heard the second appeal, accepted the contention of defendants, allowed the appeal and ordered the plaint to be returned for presentation to the proper Court and awarded costs to the defendants in all the three Courts. While the costs awarded in the High Court were taxed and inserted in the decree, there was a direction that the costs payable in the lower Courts Should be ascertained by those Courts. Conformably to this, the defendants filed a petition to amend the decree by inserting costs as provided in the High Court's decree dated 11-9-1937 and this was ordered on 6-1-1938. On 27-3-1944, the defendants applied in the trial Court to recover Rs. 83-3-0 payable by way of costs. The objection raised by the plaintiffs was that as the decree of the High Court was passed on 9-12-1931, the execution petition presented on 27-3-1944 was barred under Section 48 C. P. C. This argument was accepted by Rajamannar C. J. and Venkatarama Ayyar J. when the matter ultimately came up before them by way of a Letters Patent Appeal and the E. P. dismissed.
11. In support of their conclusion, the learned Judges relied on Khulna Loan Co. Ltd. v. Jnanendra Nath Bose, AIR 1917 PC 85. In that case, a combined mortgage decree was passed on 28-5-1896. The properties were sold on 24-6-1907 and after appropriating the sale proceeds towards the decree, there was a balance still. An execution application for recovery of this balance was filed on 6-3-1911. The High Court of Calcutta decided that in view of Order 20, Rule 7 C. P. C., the date of the decree must be taken to be 28-5-1896 and that the period of twelve years under Section 48 C. P. C. was to be computed from that date. Their Lordships of the Judicial Committee merely confirmed the judgment of the Calcutta High Court, as they saw no reason to differ from the judgment of that Court.
12. The raison d'etre of 1954-1 Mad LJ 452, as also AIR 1917 PC 85 does not govern the instant case. In the first case, the adjudication of the rights of the parties was made by the High Court when it allowed the appeal and directed the return of the plaint for presentation to the proper Court and ascertainment of costs was only a formality which could be complied with in time. The decree being indivisible and there being no impediment in the way of executing a part of the decree at once, it was held that the starting point of limitation was the date of the High Court decree. The second case also has no analogy here for the reason that in that case there was only one decree for sale of the properties and for recovery of the amount due to the mortgagee out of the sale proceeds. Further, both ,the cases arose under Section 48 C. P. C.
13. The situation here is altogether different. So far as the share of the outstandings of the plaintiff is concerned, a fresh determination had to be made by the Subordinate Judge after a further enquiry into the matter, as the parties were not agreed about the basis adopted by the trial Court in the calculation of the amounts. A reading of Clause (5) leaves no room for doubt that the High Court remanded that part of the matter to the trial Court with a direction that It should ascertain the correct amount due to the plaintiff from the defendants towards his share of the outstandings and calculate interest at six per cent. In doing so, the trial Court had to bear in mind the observations and directions of the High Court and to reconstitute Clause (3) In consonance with its finding. That finding was to be arrived at after a Judicial enquiry That being the position, there is no substance in the submission made on behalf of the appellant that the trial Court had to discharge only ministerial duties and not judicial functions.
Clause (5) of the High Court's decree makes It plain that after giving opportunity to the parties to adduce both oral and documentary evidence and on a consideration of the material before it, the trial Court had to pass a modified final decree, in regard to that part of the claim of the plaintiff. It is In conformity with the direction of the High Court that a modified final decree was passed by the Subordinate Judge on 21-1-1958. It is this modified decree that is sought to be executed. If the defendants were aggrieved by it, they should have attacked it in appeal. Not having done it, it is not open to them to contend that there was no modification of the decree. It is also to be borne in mind that the final decree that was eventually made the subject matter of the E. P. is the one that emerged on 31-3-1958 after it was lastly amended in I. A. No. 877 of 1952.
14. In the light of these circumstances, there is no force in the contention that, at any rate, in regard to that portion of the decree which is executable Immediately, it is barred by limitation either. We have already stated that a sum of Rs. 20,000/- was paid by the judgment-debtor in 1948 and the decree-holder was permitted to withdraw this amount without furnishing security. It appears that sums of Rs. 10,000/- each were credited towards the amount already determined and subsequent interest and costs up to 29-11-1951 (as could be seen from Exhibits A4(a) and A-5(a). After appropriation there was a sum of Rs. 7,590-14-8 in the hands of the decree-holder to be adjusted towards the monies to be ascertained in accordance with Clause (3) of the final decree. Thus, the position immediately after the passing of the decree by the High Court was that the decree to the extent of mesne profits etc., was satisfied and the decree-holder had little over Rs. 7,500/- in his hands, to be appropriated towards his claim arising out of the directions embodied in Clause (3).
15. At that stage, what is it that the decree-holder could execute? He had to await the determination of the amounts due to him as representing his share of the outstanding. Till that contingency arose, there was no executable decree.
16. In this connection, we may usefully refer to the judgment of the Judicial Committee in Rameshwar Singh v. Homeswar Singh, 40 Mad LJ 1 : (AIR 1921 PC 31). The decree that was the subject of scrutiny by their Lordships contained a direction that the money payable thereunder should be realised by sale of the properties of one Janeshwar in the possession of Ekradeshwar. Ekradeshwar first obtained possession of Janesh-war's properties in 1914 and the decree-holder applied on 18-12-1914 to execute that decree. An objection was taken that it was barred under Article 182 of the Limitation Act. Rejecting this plea, their Lordships remarked :
'They are of opinion that, in order to make the provision of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable In the circumstances of being enforced. A decree so limited in its scope as that of the 27th July 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution.'
The principle enunciated in this passage is applicable to the instant case. There was nothing that could be enforced In the Instant case till the outstandings to be allotted to the share of the plaintiff were determined. It is only after ascertainment of the outstandings that the decree was in a form capable of execution. This topic need not detain us any longer. We are of the opinion that the execution petition was quite in time, the decree not having been barred and It could be proceeded with.
17. In the result, the order of the Court below is confirmed and all the appeals are dismissed with costs.
18. A consolidated fee of Rs. 500/- towards the Counsel's fee and Rs. 150/- as the junior's fee are fixed.