Krishnan Pandalai, J.
1. C.M.S.A. No. 156 of 1930.--The appellant is the decree-holder on a mortgage in favour of his deceased mother Mangalathammal and himself in O.S. No. 275 of 1918 in which a preliminary decree was passed on 7th December, 1918, by the District Munsif, from which an appeal was taken to the District Judge, which was dismissed on 30th September, 1920; and from which a second appeal was taken to this Court which was dismissed on 6th April, 1923. Mangalathammal having died pending the second appeal, the appellant was added as her legal representative. Soon after the preliminary decree by the District Munsif, the then decree-holder Mangalathammal obtained a final decree on 28th April, 1919. After the decision in second appeal, the appellant, his mother having died in the meanwhile, on 5th March, 1926, applied to the District Munsif for a final decree in pursuance of the decree of the second appellate Court. This was granted by him on 21st September, 1926. On appeal by the judgment-debtor, the then District Judge on 28th September, 1927, held that the appellant was not entitled to apply for a final decree a second time and that his only course was to apply to amend the old final decree or ask for a review of it. He however on a benevolent consideration which as it has turned out has prevented what would have otherwise been a grave miscarriage of justice, * allowed the petition of 5th March, 1926, to be pending and sent it back to the District Munsif. The District Munsif considered that he was substantially carrying out the direction of the District Judge by allowing the appellant to treat his petition as one for execution of the old final decree and to incorporate in it the information which would bring it into conformity with the High Court's decree; in short, he tried to save the decree-holder by treating his petition as one for execution and one for amendment both rolled into one and he gave the appellant relief by an order to execute the old final decree as so amended. The judgment-debtor again appealed. Another learned District Judge on 6th December, 1928, set aside the above-mentioned second order of the District Munsif because according to him the District Munsif was not authorised to regard the petition of 5th March, 1926, as one for execution. He therefore set aside that order and sent the case back for a second time but this time without giving any indication of what would be the proper way to deal with the appellant's grievance and contenting himself with saying that the matter was to be disposed of according to law. For the third time another District Munsif enquired into the appellant's petition of 5th March, 1926, and this time he made sure that no more fault should be found with him and dismissed that petition on 17th January, 1929, on the ground that an application for a fresh final decree was illegal. The appellant appealed in his turn to the learned District Judge, who, on 17th March, 1930, dismissed the appeal. The present second appeal is from that dismissal.
2. I have mentioned the dates in the above narration because, while these orders were being passed by the Lower Courts, the Privy Council had decided that the appellant's petition of 5th March, 1926, was entirely legitimate and was the only petition he could file. Far from it being the case that an application for a second final decree is illegal, the true doctrine is that the right to ask for a final decree arises where the preliminary decree has been under appeal, from the date of the judgment in appeal. In cases where there has been a final decree in pursuance of the preliminary decree of the Lower Court pending the appeal, that final decree is valid and binding to the extent but only to the extent to which it is not altered by the appellate decree, and a decree of the appellate Court confirming after judicial consideration the preliminary decree of a Lower Court is for this purpose one altering it. The consequence is that where there is, as in this case, a final decree obtained in pursuance of the Lower Court's preliminary decree and that preliminary decree is taken up in appeal and the appellate Court on a judicial determination confirms the preliminary decree and dismisses the appeal, the decree-holder has the right, which he may exercise within three years from the date of the decree in final appeal, to obtain a final decree in conformity with that appellate decision or, if that is the proper way of expressing it, amending the old final decree so as to bring it into such conformity.
3. In 1917 in Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) All. 641 it was held that:
In a suit for sale on a mortgage, if an appeal has been preferred from the preliminary decree, the decree which is to be made absolute is the decree of the final Court of appeal. In such a case, therefore, limitation for an application for a decree absolute runs, not from the expiry of the term fixed for payment by the original decree, but from the date of the decree of the final Court of appeal.
4. In that case as in this the decree of the High Court was one confirming the decree of the Lower Courts but that made no difference to the proposition stated, for it was pointed out that the plaintiff's application for interest for the period subsequent to the decree of the first Court and for subsequent costs could not have been made before the decree of the High Court was passed. It was in this connection that the proposition was stated that it was impossible to hold that there can be more final decrees than one in a suit for sale upon a mortgage. This, which is perfectly right when properly understood, namely, that where there is an appeal from a preliminary decree the final decree can only be based upon the decree of the appellate Court, has been misunderstood by the Lower Courts as if it meant that where a final decree in pursuance of the first Court's preliminary decree has been passed, there can be no further application for final decree because there can be no two final decrees. This is an entire misunderstanding of the passage.
5. This decision was approved by the Privy Council in June, 1926, in Jowad Hussain v. Gendan Singh , where it was held that where there has been an appeal from a preliminary mortgage decree under Order 34, Rule 4, Sub-rule (1), and the appellate Court has not extended the time for payment, the period of three years within which, under the Indian Limitation Act, 1908, Sch. I, Article 181, an application for a final decree under Order 34, Rule 5, Sub-rule (2) must be made, runs from the date of the decree of the appellate Court, not from the expiry of the time for payment fixed by the preliminary decree. The above is the case, although the appeal is by the mortgagee, and questions merely the amount for which the preliminary decree is made, and although the appeal is dismissed. Their Lordships cited with approval passages from the judgments of two learned Judges in Gajadhar Singh v. Kishan Jhvan Lal I.L.R. (1917) All. 641 to the effect that when the decree of the appellate Court is passed, it is that decree and only that which can be made final in the cause between the parties.
6. The decision of the Lahore High Court in 1924 in Fitzholnies v. Bank of Upper India I.L.R. (1924) Lah. 257 is to the same effect and follows the Full Bench decision in Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) All. 641 on the ground that the preliminary decrees passed by the trial Courts in such cases merge in the decrees of the appellate Court and that the only decrees which can be made final are the decrees of the appellate Court. This was upheld on appeal by the Privy Council in Fitshohnes v. Bank of Upper India (1926) L.R. 54 IndAp 52 : I.L.R. 8 Lah. 253 : 52 M.L.J. 366 (P.C.). It is only necessary to refer to two decisions of this Court which carry out the doctrine laid down by the Privy Council Mahapatro v. Magata Patro (1932) 64 M.L.J. 695 and Venkatarania Reddi v. Doddachariar (1929) 58 M.L.J. 207.
7. But it has been argued that in the above cases there was no final decree passed in pursuance of the preliminary decree of the first Court pending the appeal and that where there is such a final decree, the cases do not apply. No decision making any such distinction has been brought to my notice and it seems to me on principle it cannot be supported. The argument is that where a final decree in a mortgage suit is passed pending appeal on the preliminary decree, it is the decree-holder's duty and in fact his only right to execute that decree for what it is worth and to do so in the time limited by law for execution of such decrees. From that it is further contended that where the execution of such decree has become barred by the lapse of more than three years, the fact of the appellate Court passing a modified preliminary decree in no way improves the position of the decree-holder who is bound by the final decree which he has already obtained. It is not correct to say that when an appeal is taken from a preliminary decree on which the validity of the final decree depends but from which no appeal is taken, the only right of the decree-holder is to put the final decree in execution irrespective of the result of the appeal from the preliminary decree. This is conceded by the learned Advocate for the respondent at least in cases where the appeal from the preliminary decree sets it aside or alters its provisions and terms. The reason for this concession is that the old final decree in such circumstances is a dependent decree the validity of which is destroyed by the preliminary decree itself being destroyed and similarly is altered to the extent to which the preliminary decree has suffered any alteration by the decree in appeal. It is therefore indisputable that notwithstanding an earlier final decree based upon the preliminary decree of the first Court the decree-holder has a right which he gets for the first time on the decision of the appeal to get a final decree in conformity with the appellate decision and this right cannot be affected by any particular period of time, such as three years, having elapsed after the earlier final decree. It is a confusion of ideas to think of the decree-holder's right consequent upon the decision of the appellate Court as if it were confined to execution of the final decree Obtained first and as if it were limited to the time for execution of that decree; and it is an equal confusion to consider that right as if it were to get the old final decree amended or that unless the amendment is sought for within three years of the original decree, the amendment cannot be granted because the original decree of itself has become barred by limitation. All this is not seriously disputed by the learned Advocate for the respondent.
8. But he insists that where the appellate decree simply confirms the preliminary decree of the first Court and dismisses the appeal with costs, there is no such variation as to confer any new right to get the final decree first obtained into conformity with the appellate decree. That this argument is wrong follows from the fact that assuming there has been a judicial determination in the appeal and that the case is not one which is similar to the one decided by the Privy Council in Abdul Majid v. Jawahir Lal I.L.R. (1914) All. 350 : (1914) 27 M.L.J. 17 (P.C.) the decision of the appellate Court confirming the Lower Court's judgment and dismissing the appeal with costs is as much a judgment on the merits as one reversing or varying a judgment and this is well pointed out by Wallace, J. in Venkatarama Reddi v. Doddachariar (1929) 58 M.L.J. 207.
9. I have therefore no hesitation in holding that both the Lower Courts have erred in thinking that the decree-holder was not entitled to get a final decree in conformity with the judgment in S. A. No. 49 of 1921. The decision of the lower appellate Court is set aside and the appellant's petition of 5th March, 1926, remitted to the District Munsif for the purpose of awarding to the appellant a final decree in conformity with the decision in that second appeal. The appellant has had to run the gauntlet of Courts for three successive times to get what appears to be a plain enough remedy, and he must have his costs from the respondent throughout, from and including the District Munsif's dismissal of 17th January, 1929.
10. C.M.S.A. No. 167 of 1930.--It is sufficient to deal with this case very briefly in view of the judgment which I have just delivered in C. M. S. A. No. 156 of 1930. This was a petition by the appellant filed on 17th January, 1929, after the District Munsif had on the third occasion when he dealt with it dismissed the petition of 5th March, 1926. The petition was for executing the only final decree to which the Courts had reduced him, namely, the one dated 28th April, 1919. Obviously as a petition to execute a decree of 1919, the application of 1929 made ten years afterwards was barred by limitation and it was so held by the District Munsif, an opinion which the learned District Judge confirmed. The appellant tried to get excused the period when he was wandering in the woods by promoting his petition of 5th March, 1926, which was ultimately dismissed on 17th January, 1929. As I have held that that dismissal was wrong, it becomes unnecessary to consider whether the appellant is entitled to deduct the period when the petition of 5th March, 1926, was pending. The appeal is dismissed but there will be no order as to costs.