1. This Second Appeal arises out of orders passed in execution of the decree in a suit for redemption of a mortgage of a number of items of property in Malabar. The decree of the original Court was passed on 24-2-1913, and there was a final decree of that Court on 22-4-1913. Meanwhile an appeal was brought against the preliminary decree, and that appeal was decided on 27-12-13. The present application is one made by the mortgagor to sell items 1 to 120. There was a previous application to sell items 1 to 10 upon which an order for sale was passed on 23-7-1915. The present application was made on 20-1-1919.
2. Two questions arise for our decision. The first is whether the present application is barred by limitation as more than 3 years have elapsed from the date of the appellate Court's decree.
3. The second question is whether this application for sale is valid when no final decree has been passed, since the appellate Court's decree varied the first Court's preliminary decree by enhancing the amount to be paid to the mortgagee.
4. On the first point I feel no difficulty in holding that the present is an application in execution, and it is made within three years of previous applications in execution of the same decree under Article 182 Clause 5 of the Limitation Act. It is therefore within time.
5. The second question is one of some difficulty. The order of the executing Court on 23-7-1915 was that items 1 to 10 should be sold as prayed for. At first the decree holder asked for the sale of all the items 1 to 120. The petitioner's final prayer was to sell items 1 to 10, and they were accordingly sold. No. objection was then raised by the mortgagee, judgment debtor that the application was not admissible in the absence of a final decree, on the authority of Govinda Tharagan v. Veeran I.L.R. (1912) m. 32 : 21 M.L.J. 941 it was open to a mortgagor to apply for the sale of the mortgaged property, and accordingly items 1 to 10 were sold.
6. It is argued for respondent that at the time when that order was passed the executability of the decree was in question, The appellant's learned Vakil seeks to distinguish the present. application from the previous one on the ground that that was only an application for selling items 1 to 10 and he contends that the order does not operate as res judicata in an application to sell different items. He also points out that the application then made purported to be made under Order 34 Rule 8 C.P.C. (1908) as well as under the Execution chapter, so that if an objection had then been taken that there was no final decree, the decree-holder might have asked the Court to treat that application as one for a final decree as he was then in time under Article 181 applying to the Court to pass a final decree.
7. In Ramaswami Reddi v. Ranga Manar Iyengar : (1914)26MLJ255 a similar objection was raised that an order absolute had not been made before executing a mortgage decree, and it was held that the objection could not prevail when an order for execution had already been made after notice, and that order had not been set aside. An attempt is made to distinguish that case on the ground that there the property was the same in both applications for execution whereas here the items are different. But here, as in that case, the decree was the same, and the objection to the executability of the decree is an objection, which if raised, would be common to the present application and to the previous one. In Subba Chariar v. Muthuveeran Pillai I.L.R. (1912) M. 553, it was held that, where in the course of a second application for execution of a money decree an objection was raised that the application was barred by limitation, not being within 3 years of the date of attachment, the judgment debtor was estopped from contending that the attachment was not subsisting. The items appear to have been partly the same as in the previous petition and partly fresh items, but the attachment was the same. In Mangal Pershad Dikshit v. Grija Kant Lahiri I.L.R. (1881) C. 51 the Privy Council held that if an order for execution had been made by a Court which had jurisdiction to decide whether the decree was barred by time or not, even though such order might be erroneous, if it was not reversed, it would operate as res judicata in a subsequent application to execute the same decree. In Raja of Ramnad v. Velusami Tevar and Ors. (1920) 40 M.L.J. 197 a similar objection as to limitation arose. The appellant was the assignee of a decree, and on a previous application to execute the decree a plea of limitation was raised. Their Lordships observed that it was not necessary to decide whether or not the plea would have succeeded if an appeal had been brought against the order for execution. As the defendants did not appeal from the order then made it was not competent for the executing Court in subsequent proceedings to allow the plea to be raised a second time. Applying the reasoning of those decisions, mutatis mutandis to the present case we may say that even though the executing Court did not, on a previous occasion, pronounce in so many words that the decree was executable in spite of there being no final decree passed after the appellate Court's decree, yet as that objection should have been taken then and as sale was ordered in execution of the decree as it stood the effect of that order was to decide in favour of the executability of the decree and it is not open now to the appellant to raise the objection that there is no final decree in respect of the items now involved. No doubt the items are different, but the question that should have been raised on the previous occasion and that is sought to be raised in the present case relates to the executability of the decree as a whole and that is a question common to all the items. I am therefore of opinion that the appellant is barred by res judicata from raising this objection in the present case and that the appeal must be dismissed with costs.
8. Both parties agree that, before the final execution is made a Commissioner should be appointed and there should be a valuation of improvements effected since the last valuation was made.
9. I consider it unnecessary to express an opinion whether as was held by two learned Judges in Nanu Nair v. Kandan Ashtamurthi Nambudripad there should be only one decree in mortgage suits in Malabar.
Venkatasubba Rao, J.
10. I entirely agree and have nothing to add.