Madhavan Nair, J.
1. Defendants 2 and the L. Rs. of Defendant 9 are the appellants. This Civil Miscellaneous Second Appeal arises out of an application for execution made by the decree-holder in O.S. No. 105 of 1914 (Parappanangadi District Munsif's Court) to execute a partition decree. The question for decision is whether the application is barred by limitation or not.
2. The facts are briefly these: In O.S. No. 105 of 1914 the plaintiff-respondent obtained a preliminary decree for partition on the 18th of April, 1918. The decree was confirmed in appeal on 31st March, 1919, by the first appellate Court and on the 20th of, March, 1923, by the High Court. On the 18th of April, 1918, the plaintiff applied for a final decree and on the 30th of September, 1919, a final judgment was pronounced. As the requisite stamp papers were not supplied in time, the final decree was drawn up only on the 14th of December, 1924. As the decree must bear the date on which the judgment was pronounced the decree that was drawn up in 1924 bears the date 30th September, 1919. The plaintiff-decree-holder puts in an execution application, E.P. No. 502 of 1924, but that petition was not pressed and was consequently dismissed. The petition out of which the present proceedings arise, E.P. No. 544 of 1925, was filed on the 24th of March, 1925. It will be observed that the present petition as well as the previous one has been put in more than three years after the date of the final decree, and the question is whether, in the circumstances, these petitions are time-barred.
3. It was argued before the District Munsif that the period of three years for executing the decree in this case under Article 182, Clause (2) of the Limitation Act should be calculated from the date of the High Court's decree and that, therefore, the petitions are not time-barred though they were filed beyond three years from the date of the final decree which is the one now sought to be executed. He did not accept this argument but held that the time for execution began to run from the date of the final decree. On appeal the learned Subordinate Judge came to a contrary conclusion and held that the time began to run from the date of the High Court's decree and that, therefore, the applications are not time-barred. He held that the applications are not time-barred for another reason also. I have already stated that the final decree was passed on the 30th of September, 1919. But on the 6th of December, 1924, it was amended as per order on E.A. No. 1249 of 1924. It was contended before the learned Subordinate Judge that the decree having been amended on the 6th of December, 1924, the decree-holder has got three years' time to execute the decree from the date of this amended decree under Article 182, Clause (4) of the Limitation Act and that, therefore, the applications are within time. This argument was accepted by the learned Subordinate Judge and on this ground also he held that the applications were not time-barred. Another point was also argued before the learned Subordinate Judge and that was, that the final decree in this case was drawn up only on the 14th of December, 1924, that till then there was no decree which could have been executed and that the petitioner had therefore three years' time from the 14th of December, 1924. The decree that was drawn up in 1924 bears the date 30th September, 1919. The learned Subordinate Judge did not express any definite opinion upon this point. But as the argument is obviously untenable, it was not pressed before me by the learned Counsel for the respondent.
4. And so, the two points arising for determination it? this Second Appeal are (1) whether the period for the execution of the decree should be calculated from the date of the High Court's decree (i.e., 20th March, 1923), or from the date of the final decree (i. e., 30th September, 1919); (2) whether time in this case can be calculated under Article 182, Clause (4) of the Limitation Act from the date of the amended decree.
5. I shall first deal with the question with reference to Article 182, Clause (2) of the Limitation Act. Under this clause the period of the prescribed three years is to be calculated from '(where there has been an appeal) the date of the final decree or order of the Appellate Court or the withdrawal of the appeal'. It is argued for the appellant that since there has been no appeal against the final decree, time for execution should be calculated from the date of the final decree, which is the decree sought to be executed and not from the date of the High Court's decree passed in appeal against the preliminary decree. On the other hand, the respondent contends that there is nothing in the wording of Clause (2) of Article 182 to show that the appeal therein referred to is an appeal against the decree sought to be executed and since there has been an appeal in the present case, though not against the final decree, the date of the final disposal of the appeal should be the date from which the period of limitation should be computed. In support of this view it is urged that the appeal against the preliminary decree may imperil the decree sought to be executed and therefore the legislature has deliberately extended the period by fixing the date of the disposal of the appeal as the date for calculating the period of limitation. It is somewhat curious that this question has not arisen for decision in any of the High Courts with reference to the execution of a partition decree. But the question arose in Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780 in connection with the execution of the final decree in a mortgage suit in which an appeal had been filed against the preliminary decree. In that case a preliminary decree in a mortgage suit was passed on the 23rd of August, 1921 and there was an appeal against that decree to the High Court. During the pendency of the appeal the mortgagee-decree-holder obtained a final decree for sale on the 28th of October, 1922. The appeal to the High Court against the preliminary decree was dismissed on the 29th of October, 1925. The application for execution was made on the 2nd of February, 1926. The judgment-debtor contended that the application was barred by limitation. It was held by the learned Judges that limitation ran from the date of the final disposal of the appeal by the High Court and that therefore the application for execution was within time. This decision is strongly relied on by the learned Counsel for the respondent. If the decision correctly lays down the law, there can be no doubt that it may be applied to this case. The fact that the decree in that case was passed in a mortgage suit while the present one was passed in a partition suit does not make any difference with regard to the application of the principle. The appellant's learned Counsel argues that this decision does not lay down the correct law.
6. The conclusion arrived at by the learned Judges in Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780 is based mainly on two considerations: (1) the wording of the clause, and (2) a decision of the Privy Council in Ashfaq Husain v. Gauri Sahai . I shall first consider the Privy Council decision and see whether it supports the principle extracted from it by the learned Judges. To appreciate the decision it is necessary to state the facts of the case. These appear in the headnote as follows:
A decree for sale on a mortgage was passed against several defendants jointly on the 25th August, 1900, and made absolute on the 21st December, 1901. As against one defendant, however, the decree was ex parte, and it was set aside as against her on appeal on the 11th March, 1902. Subsequently a decree was passed on the merits against this defendant on the 15th August, 1902, and her appeal was dismissed by the High Court on the 16th November, 1904, and as against her that decree was made absolute on the 27th November, 1905. An application for execution was made against all the defendants on the 21st December, 1905, based on the decrees of the 25th August, 1900, the 15th August, 1902, the 16th November, 1904, the 21st December, 1901, and the 27th November, 1905.
7. The defendants contended that the decrees of the 25th August, 1900, and the 21st December, 1901, were time-barred. Prima facie the application was barred by limitation. But their Lordships of the Privy Council held that the decrees of the 25th August, 1900 and the 16th November, 1904, were steps in granting the plaintiff the relief to which he was entitled. The latter decree supplemented and completed the former and for the first time justified the plaintiff in applying for the joint execution of the decree. Time under the Limitation Act began to run from the date of the latter decree, or rather from the date on which it was made absolute, the 27th November, 1905, and consequently the application was not barred. From the reasoning adopted by their Lordships it does not appear to me that this case can be used as an authority for the position contended for by the appellant. Their Lordships do not say that time should be calculated from the 16th November, 1904 (or rather from the 27th November, 1905) because this is the date of the final decree of the appellate Court but what they say is that time should be calculated from that date because 'It was then for the first time that the Court granted a complete decree to the respondent'. According to their Lordships the plaintiff was entitled to get a joint decree against all the defendants. But owing to an irregularity in procedure the decree which he obtained against one of the defendants was set aside and ultimately a decree was passed against that defendant. Their Lordships point out that the decree, dated the 15th November, 1904, was the second step in granting to the plaintiff the relief to which he was entitled, the first step being the original decree of the 25th August, 1900. Considered in this view, the decree of the 16th November, 1904 'supplemented and completed the decree granted on the 25th August, 1900 and for the first time gave to the plaintiff that which alone would justify him in applying for the joint execution to which he was entitled'. Viewed in this light the decree which the decree-holder in that case was executing was an incomplete decree of the 25th August, 1900, completed by the decree passed on 16th November, 1904, and time was calculated from the date when the Court granted a complete decree to the decree-holder. In the present case the decree-holder had obtained a complete executable decree on the date of the final decree. Speaking with the greatest respect I do not think the decision of the Privy Council in Ashfaq Husain v. Gauri Sahai has been correctly applied by the learned Judges of the Patria High Court in Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780. Now coming to the first ground, no doubt the wording of the clause as it stands supports the conclusion arrived at by the learned Judges. But I think it is wrong to interpret the clause in this way ignoring the context in which it appears. There can be no doubt that under the first clause the period for the execution of a decree is three years 'from the date of the decree or order'.. This clearly means from the date of the decree or order that is sought to be executed. Then comes Clause (2) which says, '(where there has been an appeal) the date of the final decree for order . . . '. Appeal from what decree or order Surely, appeal from the decree or order sought to be executed. This seems to me to be the only interpretation possible having regard to the context in which the clause stands. In the present case there has been no appeal against the final decree which is the decree sought to be executed and, therefore, time should be computed from the date of the final decree. It was argued for the respondent that the final decree is imperilled by the appeal preferred against the preliminary decree and in case of his success in the appeal the final decree will have to be altered. True; but nothing stands in the way of the party concerned applying for the passing of a fresh final decree in accordance with the appellate decree; and this I believe is what is generally done when after the passing of a final decree by the first Court during the pendency of the appeal the appellate Court ultimately interfered with the preliminary decree. I am not satisfied that there is much substance in the argument that the final decree is imperilled by the decree that may be passed by the appellate Court in the appeal against the preliminary decree, and that, therefore, the time should be calculated only from the date of the appellate decree.
8. Mr. Kuttikrishna Menon on behalf of the appellant has brought to my notice various cases, such as, Fakir Chand Mandal v. Daiba Charan Parni I.L.R. (1927) 54 Cal. 1052, Profulla Kumar Basil v. Mt. Sorojbala Basu : AIR1931Cal332 , Jivaji v. Ramchandra I.L.R. (1891) 16 Bom. 123, Sheo Prasad v. Anrud Singh I.L.R. (1879) 2 All. 273, Narsingh Sewak Singh v. Madho Das I.L.R. (1882) 4 All. 274 and Mulkh Raj v. Gurdittah Shah Harichand A.I.R. 1929 Lah. 283. Generally stated, in these cases it was held that appeals from orders refusing to set aside ex parte decrees are not to be regarded as appeals from the decrees themselves and therefore cannot be availed of by the decree-holder to save his application to execute the decree from the bar of limitation under Article 182, Clause (2). These cases do not apply to the present case inasmuch as there were no appeals in these cases against the decrees sought to be executed.
9. For the above reasons, I am of opinion that in the present case the period of limitation should not be computed from the date of the High Court's decree on 20th March, 1923, but should be computed from the date of the final decree on 30th September, 1919. I think this conclusion follows from a true interpretation of Article 182, Clause (2) of the Limitation Act having regard to its context.
10. The next question is whether time can be computed in this case from the date of the amended decree. Article 182, Clause (4) prescribes '(where the decree has been amended), the date of amendment' as the starting point for limitation. Here again, if you rely merely on the express language of the clause the respondent's contention should be upheld. In the present case before the amendment the decree had become admittedly barred. If the literal construction of Article 182, Clause (4) is to be accepted, then it would enable the decree-holder to execute a barred decree, but I cannot believe that this result was intended by the legislature to follow from this provision. In Rabiuddin v. Ram Kanai Sen (1920) 59 I.C. 186 it was held that 'a decree which is capable of execution and is not executed within three years from its date becomes dead and cannot be revived by a subsequent application for amendment.' To the same effect is the decision in Jhamman Lal v. Daulat Ram A.I.R. 1924 Lah. 329. As against these decisions Mr. Govinda Menon for the respondent relies upon the following observations in Durga Prasad Das v. Kedarnath Nayek : AIR1929Cal650 in support of his contention that the starting point of limitation is the date of the amended decree:
Where the legislature has provided that the time from which period of limitation for execution of a decree should begin to run where a decree has been amyided, is the date of amendment, it is not for the Court of execution to enquire whether the amendment was properly made, whether the original decree was capable of execution or whether for any other reason the Court was wrong in making the order for amendment of the decree.
11. I agree that it is not the duty of an executing Court to consider whether the amendment has been properly, made, but it has to decide whether the application is barred by limitation or not. I do not think it is necessary to discuss this decision any further as it runs counter to the previous decision of the Calcutta High Court itself, Rabiuddin v. Ram Kanai Sen (1920) 59 I.C. 186 already noticed; and as in that case when the application which was said to have been barred was filed, there was already an execution application pending which was within time. The final decree in the case was made on the 8th May, 1924 and the first application for execution was filed on the 7th May, 1927. In the course of narrating the facts of the case the learned Judges say, 'It is unnecessary to mention that the execution was asked for of the amended decree in continuation of the application presented in Court on the 7th May, 1927.' In this view the learned Judges' conclusion that the execution application was not barred by limitation seems unobjectionable whatever may be said against their observations quoted above. In my opinion a decree which has already become barred by limitation cannot be revived for purposes of execution by a subsequent amendment. I must not fail here to point out that the appellant's learned Counsel objects to the respondent relying on the amended decree for the reason that no notice was given to his client at the time when the amendment was made. The amendment of the decree was not relied on in the first Court as a ground for saying that the applications for execution were not barred by limitation. The point was taken for the first time in the appellate Court and the learned Judge has not anywhere in his judgment stated that notice of amendment was or was not sent to the appellant. In the view I take that the amended decree cannot in the present case form the starting point for limitation there is no need for considering whether the notice of amendment was as a matter of fact sent to the appellant and if not whether the amended decree can be relied on to save limitation.
12. In the result I set aside the decision of the Lower Court and restore that of the District Munsif with costs here and in the Court below.