1. This is a judgment-debtor's appeal from an order passed by the learned District Judge, Meerut, disallowing his objection to an application for execution made by the respondent decree-holder. The only plea on which the application was resisted by the appellant was that it was barred by limitation. The learned District Judge over-ruled the plea. Hence this appeal.
2. The respondent obtained a preliminary decree on foot, of a mortgage on 12th September 1923. The appellant preferred an appeal to the Additional Judge, Meerut, who dismissed it on 7th January 1924. A final decree was prepared on 4th November 1924 on the basis of the decree passed by the Court of appeal. The appellant preferred a second appeal to this Court, which was dismissed on 7th July 1926. After the decree passed by the High Court in appeal from the preliminary decree an application was made by the respondent that the final decree previously prepared be amended, as after the preparation thereof the High Court has upheld the preliminary decree and further costs had been incurred by the respondent and allowed to her by the decree of the High Court. The trial Court, allowed it and directed the amendment of the final decree as prayed. The final decree was amended so as to be in conformity with the decree of the High Court as regards costs. It is not suggested that the so-called amendment of the decree proceedings were taken behind the back of the appellant or that he had no opportunity of resisting the application for amendment, We must take it that those proceedings were taken between the parties and the order of the Court, if otherwise valid and binding, is conclusive between the parties. The order allowing the amendment was passed on 14th January 1929.
3. The respondent applied on 23rd December 1929, for execution of the final decree, computing the period of limitation from the order directing the amendment of the final decree. The judgment-debtor pleaded that the application for execution was barred by limitation, as it had been made more than three years after the date of the final decree as originally prepared, i.e., 4th November 1924. It is conceded that, unless the limitation is taken to run from the order of amendment of the final decree, the application is barred. The learned District Judge, who over-ruled the plea of limitation, held that:
After a preliminary decree passed under Order 34, Rule 4, has been confirmed in appeal, the decree-holder again has a right to obtain a final decree in the terms of the preliminary decree on appeal. This is what really happened, though instead of saying that a final decree in the terms of the preliminary decree on appeal be prepared it was said that the final decree already passed be amended by addition of the costs awarded by the appellate Court.
4. The learned advocate for the appellant has strenuously contended that the final decree, dated 4th November 1924 had already become barred by limitation when the respondent applied for amendment thereof and when the Court ordered its amendment and that consequently the decree could not be revived by amendment. He has quoted a number of decided cases which, he claims, support his contention.
5. It is not necessary to examine the authorities on which the learned advocate relies, because the view taken by the lower Court, if correct, proceeds on a totally different ground, which is not affected by the contention put forward before us. The learned District Judge construed the action of the Court ordering amendment of the final decree of 4th November 1924, as one tantamount, to passing a fresh final decree, taking the High Court's decree as the only subsisting preliminary decree in a mortgage suit. It is clear that the final decree of 4th November 1924, could not have been 'amended' under any rule of law. The application was not one under Sections 151, 152 or Order 47, Civil P.C. Nor can the so-called order of amendment be considered to be one under any of those provisions. To take the order literally would imply that, the Court passed an order which it had had no power to pass. If it is possible to construe the action of the Court as legal, such construction should be adopted. In our opinion the learned District Judge has taken a correct view of the order amending the decee. It was, in substance, an order directing the preparation of a fresh final decree on the supposition that the final decree previously prepared on foot of a preliminary decree passed by the trial Court had become vacated by the subsequent preliminary decree passed by the High Court, in which the decrees of Subordinate Courts, had merged. The Court should be deemed to have proceeded on the view that the only subsisting preliminary decree was the decree of the High Court and that a fresh final decree based on that decree should be prepared. The mortgagee's application asking for amendment and the order of the Court making use of the same word amount, in substance, respectively to an application and an, order for preparation of a fresh final decree. The order which is inter partes is conclusive and the final decree prepared in pursuance of it is equally so. In this view, the only decree which was capable of execution on the date on which the present application for execution was made was the decree; prepared in January 1929, which was less than three years before the placation for execution. The order appealed from is right in every respect. This appeal is accordingly dismissed with costs.