Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This is a judgment debtor's appeal. The suit was brought on foot of a mortgage, dated the 9th of June, 1895. This mortgage was a mortgage of the zamindari rights and also of mortgagee rights. A decree was obtained in 1900. Applications were made from time to time for the execution of the decree, and in the first place apparently the application for execution was limited to an application for sale of the zamindari rights mortgaged. This very probably was the case, because at that time it had been held that mortgagee rights could not be sold in execution of a mortgage decree. In the year 1908 the decree-holder applied for a sale of the mortgagee rights and asked the court executing the decree to put into the sale proclamation a statement to the effect that the mortgagee rights were being sold. Rightly or wrongly, that court decided that the decree did not include the mortgagee rights and refused the application. The decree-holder appealed, and on the case coming before the court of appeal an application was made for leave to withdraw the appeal with liberty to make a fresh application in execution. The representative of the judgment-debtors is recorded to have said that he had no objection so long as he got his costs. The decision of the court below was affirmed and the appeal dismissed with costs. The matter rested there until a further application was made by the decree-holder for the sale of the mortgagee rights. This was met with the objection first that the decree did not include mortgagee rights, and secondly, that it had already been held that the decree did not include mortgagee rights, and that order had become final. The lower appellate Court allowed the second objection and dismissed the application for execution. In Second Appeal to this Court the learned Judge held that the decree was sufficient to include the mortgagee rights, and that having regard to the circumstances connected with the application to withdraw the appeal, the present application for execution was maintainable.
2. We are not inclined to agree with the learned Judge, of this Court that the decree was sufficient to include the mortgagee rights. On the other hand we think that, when the court executing the decree rejected the application to sell the mortgagee rights and held that they were not included in the decree and so not liable to be sold, that order was final unless it was set aside upon appeal. It never was set aside upon appeal. On the contrary it was affirmed and the appeal was dismissed, It is suggested that the provisions of Chapter XXII of Act No. XIV of 1882 permitted the withdrawal of the application for execution and gave a right to make a fresh application. It will be seen by reference to Section 375 A that the provisions of that Chapter did not apply to any application subsequent to the decree.
3. We must allow the appeal, and, setting aside the decree of this Court, restore the decree of the lower appellate Court with costs of both hearings in this Court.