1. This is an appeal from the judgment of the Subordinate Judge's Court of Cocanada in a mortgage suit and a question of some importance has been argued before us by Mr. Somasundaram as to whether the starting point for an application for a decree absolute under Order 34, Rule 5, C.P.C, which is governed by Article 181 of the Limitation Act is the date of the original decree or the date of the appellate decree which affirmed the original decree.
2. It had long been regarded as well-settled in this Court that the starting point under. Article 181 was the date of the appellate decree, and there is a decision of the Privy Council in Bhuf Indar Bahadur Singh v. Bijai Bahadur Singh I.L.R. (1900) All. 152 which strongly supports that view. In that case the District Judge passed a decree giving the plaintiff possession with future mesrie profits. That decree was set aside by the High Court and was restored, after a great many years, by the Privy Council. The question then arose in execution as to the date from which mesne profits should be calculated under the provisions of Section 211 of the old Code (Act XIV of 1882) and their Lordships observed at page 158: ' The Court is now executing, not the District Judge's decree of 1887, but the Queen's Order of 1895, which by affirming the District Judge's decree has adopted its terms and has carried on their effect down to a later date.' Those observations of the Privy Council are entirely in accordance with what has till recently been the established view in this Court. If the date of the final decree was the proper date to have regard to for the purpose of Section 211, C.P.C, it follows that it is equally the proper date to have regard to with reference to an application for a decree absolute under Order 34, Rule 5.
3. We have, however, been asked to hold that this authority should be disregarded on the authority of a more recent decision of the Privy Council in Juscurn Bold v. Pirthi-chand Lal Choiidhnry I.L.R. (1918) Cal., 670 and certain observations of Seshagiri Ayyar, J., one of the learned Judges who decided Viswanatha Sastri v. Sitalakshmi Animal (1920) 13 L.W. 37 which go to support this contention. Those observations were obiter because both the learned Judges concurred in holding that the case was governed by Article 182 the general article relating to execution. We have carefully examined Juscurn Bold v. Prithichand Lal Choudhry I.L.R. (1918) Cal., 670 and have come to the conclusion to which we have referred. In the recent case an auction purchaser sued to recover from certain decree-holders his purchase-money in consequence of the sale being set aside. Assuming that Article 97 was the article applicable, the Privy Council held that consideration failed when the sale itself was set aside in the first court, that time then began to run under Article 97 and that consideration did not fail afresh when the order setting aside the sale was affirmed by the appellate court. Here, as in the well known case in Basu Kuar v. Dhiim Singh I.L.R. (1888) All. 47 the question their Lordships had to decide was when the consideration in fact failed; once that was established the application of Article 97 was clear. With reference to this question they observed in accordance with the express provisions of the Code that an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal, but those observations must in my opinion be considered as inapplicable to questions arising under Articles 181 and 182. By Article 182 the appellate decree is expressly made a fresh starting point for purposes of execution, and an appellant is not required to proceed with the execution of a decree against which he has appealed while the appeal is pending on pain of becoming barred if he does not. It would be strange if a different rule were applicable under Article 181 as regards applications for a decree absolute where the preliminary decree is under appeal, an application so much resembling an application for execution that under the repealed chapter of the Transfer of Property Act it was held by this Court to be one. That was a question which their Lordships were not considering.
4. The view that for the purposes of such an application the appellate decree supersedes the original decree appears to be in accordance with the earlier decision in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh I.L.R. (1900) All. 152 where their Lordships held that the decree that they were executing was the decree of the appellate Court. Applying that to the present case, the preliminary decree which is being executed must be held to be the preliminary decree passed by the appellate Court. It would obviously be so if the decree of the appellate Court had varied the preliminary decree passed by the lower court, and there are no good reasons for applying different rules as regards questions arising under Article 181 when the appellate Court affirms the decree of the lower court and when it varies it. Consequently an application for a decree absolute has to be made under Article 181 within three years from the passing of the preliminary decree by the appellate court, and, therefore, the present application was in time and the objection fails.
5. The other objection which was taken is an objection to the preliminary decree 'which has already been confirmed by this Court and cannot be now questioned.
6. Objection has then been taken that the legal representative of the 4th defendant who was one of the representatives of the original mortgagee was not brought on in time. We think that, in the circumstances, if that is so, the delay should be excused.
7. The appeal accordingly fails and is dismissed with costs.