Venkatarama Ayyar, J.
1. This is an appeal under Clause 15, Letters Patent against the judgment or Panchapakesa Ayyar J. in C. M. A. No. 328 of 1948. The judgment-debtor is the appellant. The respondent filed O. S. No. 33 of 1929 in the District Mun-siff's Court, Erode, for partition of certain properties held in co-ownership. There were a number of defendants in that suit. On 3-10-1929 a preliminary decree was passed. Clause 1 of the decree declared the right of the plaintiff to a 5/6 share in the properties and directed a division thereof. Under Clause 2, the plaintiff was declared entitled to mesne profits from 31-10-1927 till date' of delivery of possession at the rate of 7 1/2 pothies of paddy or their value, Rs. 200, per annum. The third clause provided that the plaintiff was entitled to recover the mesne profits subject to the condition that he paid the court-fees payable on the amount of the mesne profits granted under the decree within one week from that date and that in default of payment of the court-fee the plaintiff should not obtain a copy of the decree and execute the same against the defendants. Thus, the decree was a preliminary decree with reference to division of the properties and a final executable decree as regards the mesne profits. There was an appeal against the preliminary decree and that was disposed of on 12-11-1935. There was a second appeal to this court and that was disposed of on 6-12-1939. Defendant 10 who is the appellant before us was not a party to these appeals. Meantime, on 15-2-1935, the final decree was passed, and the plaintiff obtained possession through Court on 20-6-1935. On 12-2-1945, he filed E. P. No. 292 of 1945 for the recovery of mesne profits under the decree from the 10th defendant. This application was resisted on two grounds. She contended that as the execution application was presented more than 12 years after the date of the decree it was barred by limitation. She also contended that as the plaintiff had not paid the court-fee within a week as provided in Clause 3 of the decree he was not entitled to execute the same. Both these contentions were overruled by the Courts below and execution was directed to issue. There was an appeal by defendant 10 to this Court C. M. A. No. 328 of 1948 and the judgments of the Courts below were affirmed oy Panchapakesa Ayyar J. Against this judgment the present appeal has been preferred.
2. Mr. B.V. Viswanatha Ayyar has pressed before us both the contentions as to the bar of limitation and the non-executability of the decree by reason of the failure to pay the court-fees. On the question of limitation he contends that so far as mesne profits were concerned, there was a final executable decree on 3-10-1929 and that therefore the present application filed on 12-2-1945 was barred under S. 48, Civil P. C. The answer of the respondent is that there was an appeal and a second appeal against the decree dated 3-10-1929, the second appeal was finally disposed of on 6-12-1939, the period, of limitation begins to run only from that date, and the present execution application is accordingly in time. Mr. Viswanatha Aiyar replies that defendant 10 was not a party to the appeals and that as against her there was an executable decree on 3-10-1929 and that the present application presented more than 12 years from that date is barred by limitation under Section 48, Civil P. C.
3. The law is well settled that when a decree is taken in appeal to a higher Court the decree passed in appeal supersedes that of the Court below and becomes the decree in the suit itself and that thereafter that is the only decree which is capable of execution and that the period of limitation for execution would run from the date of that decree. In --'Krishtama Chariar v. Mangammal', 26 Mad 91 (A), the question arose how far this doctrine would be applicable in a case where the appeal was in respect of a portion of the subject matter of the suit. The contention that was urged was that as regards the un-appealed portion there was no impediment to execution and therefore as to that limitation should be reckoned from the date of the decree of the first Court, and that as that portion was not the subject matter of the appeal the period of limitation should not be calculated from the date of the decree of the appellate Court. This contention was rejected by this Court. Bhashyam Ayyangar J. stated the principle applicable to the case in these terms:
'In my opinion, this is sound from a juridical point of view. When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that a matter is litigated both in the Court of first instance and again, though only in part in the Court of appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of appeal. There cannot be two final decrees in such a suit, one by the Court of first instance and the other by the Court of appeal.'
The principle laid down in this decision has ever since been uniformly followed and must be taken as firmly established. The argument of Mr. Viswanatha Aiyar is that this decision is not applicable to cases where the decree is sought to be executed against persons who were not parties to the appeal, and that it should be limited to cases where the parties against whom execution is sought were parties to the appeal. The judgment of Panchapakesa Ayyar J. was based on a decision of a Bench of this Court in -- 'Nacharamnal v. Veerappa Chettiar', AIR 1946 Mad 231 (B), where it was held that where there was a second appeal and the decree was one of dismissal the period of limitation under Section 48, Civil P. C. should be calculated from the date of the decree in second appeal and not from the date of the decree of the trial Court. Mr, Viswanatha Ai'yar contends that in that case the execution was sought against persons who were parties to the second appeal, and therefore the point now under consideration did not arise for determination. That must be conceded. The question, therefore, to be determined is whether the decision in -- '26 Mad 91 (A), becomes inapplicable in cases where the decree is sought to be executed against persons not parties to the appeal. On principle, it is difficult to see why it should be so. If the true juristic position is that the decree in appeal supersedes the decree of the trial Court and becomes the decree in the action, it should make no difference whether the person against whom execution is sought is a party to the appeal or not any more than whether the appeal related to the entire subject matter of the suit or only to a- part thereof. In either case, on the principle that there can be only one decree in a suit it must be held that the only decree which is capable of execution is the decree passed in appeal.
The decision of the Privy Council in --'Nagendranath v. Sureshchandra' , would appear to conclude the matter. There, certain co-sharers executed a mortgage in favour of some of the co-sharers. One' of the mortgagee co-sharers Madaamohan filed a suit to enforce the mortgage against all the co-sharers and also claimed that he had acquired the rights of the other co-mortgagees. The trial Court held that Madanmohan had not acquired the rights of his co-mortgagees and granted the usual mortgage decree. Against that judgment, there was an appeal only by Madanmohan, and the scope of that appeal was his claim, against his comortgagees. The judgment-debtors were not parties to this appeal. The appellate Court confirmed the decree of the trial Court on 24-8-1922. The other co-mortgagees, filed an application for execution on, 3-10-1923 and that was more than three years from the date of the original decree which was on 24-6-1920 but within three years of the appellate decree. The contention of the judgment-debtors was that the execution of the decree was barred by limitation as against them as they were not parties to the appeal preferred by Madanmohan and that therefore as against them limitation ran from the date of the decree of the trial Court. The contention was repelled by the Privy Council and it was held that the limitation for execution of the decree ran from the date of the appellate decree, notwithstanding the fact that the judgment-debtors were not parties to that appeal. After referring to the difference of opinion in the Indian Courts on theNjuestion, their Lordships came to the conclusion that the words of the Statute, 'where there has been an appeal' should be construed as including any appeal presented, and that the Article would apply notwithstanding the fact that the appeal did not comprise the whole subject matter of the suit or the judgment-debtors were not parties to it. Their Lordships observe as follows : 'There is in their Lordships' opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say.' In view of this clear pronouncement, it must be held that even though the appellant was not a party to the appeals, limitation even as against her ran only from the date of the decree in second appeal which was on 6-12-1939: and that therefore the execution petition is within time. In this view, it is unnecessary to refer to decisions under the Madras Agriculturists' Relief Act in which this Court has he!d that even with reference to parties who are not parties to the appeal the only subsisting decree liable to be scaled down was the decree passed un appeal. Vide the judgment of Wadsworth J. in -- 'Palani Mudali v. Athiappa Goundan', AIR 1943 Mad 160 (D) and of Wadsworth and Patanjali Sastri JJ. in -- 'Moidin Bacha Row- i ther v. Chidambaram Filial' : AIR1945Mad86 .
4. The next contention urged on behalf of the appellant is that as court-fee was not paid within the time limited by the decree it became unexecutable. Clause 3 of the decree provides that the court-fee for mesne profits should be paid within a week from that date. The contention of the appellant is that that not having been paid there is no decree which, could be executed. There is considerable doubt on the record as to whether in fact there was default On the part of the plaintiff in payment of the court-fee within the time limited. The endorsements suggest that the court-fee with reference to the mesne profits down to the date of suit had been paid within, a week and it was only the court-fees payable in respect of mesne profits payable subsequent to the date of suit that had not been paid. If this is the true-position, it is conceded that there is no substance in this point. But even otherwise we think that this contention is clearly unsustainable. Section 11, para 1 runs as follows:
'In suits for mesne profits or for immoveable property and mesne profits, or for an account, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.'
The present case falls under this paragraph. Under this paragraph the only penalty for non-| payment of court-fees is that the decree could not be executed until they are paid. It will be noticed that this paragraph does not con-template the Court fixing any time within which the court-fee has to be paid. There is no need for it inasmuch as the plaintiff could not execute the decree unless he paid the court-fees. In this case, the decree in providing that the court-fee should be paid within one week, went in our opinion beyond what is permitted under Section 11 para. 1. The appellant contends that rightly or wrongly the condition having been imposed and not having been complied with, it must be treated as though Clause (3) of the decree meant that the claim should stand dismissed, if no court-fee was paid within one week. While there is an express provision in para. 2 of Section 11 that in cases falling thereunder the suit shall be dismissed if the additional fee is not paid within such time as the court fixed, there is no similar provision in cases coming under para. 1. The clause therefore, requiring the plaintiff to pay court-fee within a week cannot be construed as involving a decision that the suit should stand dismissed if the court-fee was not paid. There is authority in this court in -- 'Perianan Chetti v. Nagappa Mudaliar', 30 Mad 32 (F), that where such a clause is inserted in the decree that does not preclude the decree-holder from paying court-fee later and applying for execution. There the decree provided as follows: 'And this Court doth further order and decree that plaintiff do pay' court-fee Rs. 4-14-0 on the subsequent rent awarded to him after plaint within 9-9-1904.'
The plaintiff did not pay the court-fee within the time mentioned. When he applied for execution objection was taken that the decree could not be executed as court-fee was not paid as directed. The District Munsif granted extension of time to pay the court-fee and allowed execution to proceed. On appeal, the District Judge held that there was no provision to extend the time and dismissed the application. The matter came in second appeal before this Court. In reversing the decree of the District Court, this Court observed: 'Apparently, it was assumed that the latter part of Section 11 of the Court-fees Act applied and therefore a time was named within which the extra court-fee should be paid; but this is clearly a mistake. If any part of that section applies it is the first part of it, and the intention of that part of the section is not that a time should be fixed for the payment of the extra court-fee but that execution should be stayed until the extra court-fee payable is paid. The latter part of the decree is, in our opinion, mere surplusage, and the Court had power to permit execution of the decree on payment of the extra court-fee as intended by Section 11, Court-fees Act.' 'We are accordingly of opinion that the provision in Clause (3) of the decree that the plaintiff should pay the court-fee within a week did not preclude him from paying it at any time and applying for execution of the decree. He did pay the court-fee before he applied for execution and therefore the requirements of Section 11 were fully satisfied. This objection, therefore, must also be overruled.
5. In the result, the appeal fails and is dismissed with costs.