1. The petitioner was the 1st defendant in a suit on a mortgage. The other defendants were his, sons. The trial Court gave a decree against the 1st defendant and against the family properties in the hands of the sons to a certain extent. This decree was passed in 1931. An appeal was preferred by the plaintiff against the disallowance of a portion of, his claim as against the sons. The 1st defendant against whom the decree had been passed in full was not given notice of this appeal and he did not himself question the decree. That appeal was allowed and a second appeal was preferred to this Court by one of the sons. In that appeal also no notice was taken to the 1st defendant the decree against whom was not in question. The second appeal was pending when Act IV of 1938 came into force and judgment was delivered on the 19th October, 1938. Since that judgment has been delivered a final decree in accordance with the terms of the preliminary decree as amended in second appeal has been passed. The 1st defendant took no action to get any relief under Act IV of 1938 until the present application was filed in 1940. The nature of this application was one under Section 19 of Act IV of 1938 to scale down the trial Court's decree passed against the 1st defendant. The application has been dismissed on the ground that the appellate Court's decree having been passed after the Act came into force the 1st defendant has forfeited any rights which he may have had by not urging those rights in the pending appeal. The decisions in Kotayya v. Venkata Punnayyd : AIR1940Mad910 . and Kannabhiran Pillai v. Govindaswami Pillai : AIR1940Mad959 . are quoted by the lower Court.
2. It is argued here that since the 1st defendant was not impleaded in the second appellate Court he was not obliged to raise any contention open to him in that Court and can now apply to scale down the only decree passed against him, namely, the decree of the trial Court. It seems to me that this argument is unsound. As was pointed out by the Full Bench of the Allahabad High Court in Muhammad Sulaiman Khan v. Muhammad Yar Khan I.L.R. (1888) All. 267. when a decree has been the subject-matter of an appeal the decree of the appellate Court supersedes the decree of the Court below even though the appellate decree is one which merely affirms the decree of the Court below and does not reverse or modify it. The same decision has pointed out that the only decree which can be amended is the decree to be executed and the decree to be executed is the decree of the appellate Court and not the decree of the Court below. The learned Judges go on to hold that an application under the Civil Procedure Code to amend the decree can only be entertained by the appellate Court. Applying the principles of that decision, which has been repeatedly followed by this High Court, to the present case, it follows that the only decree which can be executed is the decree of this Court in second appeal or rather the final decree passed in pursuance of that decree. The trial Court's decree has been superseded not merely to the extent to which it has been altered but in toto. The portion of this Court's decree affirming the trial Court's decree takes the place of the decree affirmed and the portion of this Court's decree altering the trial Court's decree replaces the portion of the decree altered. It seems to me that it makes no difference to this principle whether a particular defendant was or was not a respondent in the appeal. Under Order 41, Rule 33, Civil Procedure Code, the Court has jurisdiction to alter a decree in favour of a party who is not a respondent in the appeal. It could have no such jurisdiction unless the decree as a whole was the subject-matter of the appeal, although of course it cannot pass an adverse order in the absence of one of the parties affected. When this Court passed its decree in second appeal, it affirmed the decree against the 1st defendant. By so doing it did nothing adverse to the 1st defendant who had submitted to the decree and preferred no appeal against it. If the 1st defendant was entitled to any benefit under the new Act which came into force while the appeal was pending it was in my opinion his duty to get himself impleaded in the pending appeal and ask for that relief before the appellate decree was passed. On the facts of the present case it is highly probable that he knew all about the pendency of this second appeal. But whether he knew about it or not, the decree of the trial Court ceased to have any force of itself after the appellate decree was passed and the only decree to be executed being the appellate decree, the trial Court would no longer have any jurisdiction to alter the superseded decree with reference to the terms of Section 19 of Act. Nor could this Court alter its own decree under Section 19, as Section 19 applies only to decrees passed before the commencement of the Act.
3. In this view I agree with the decision of the lower Court and dismiss the petition with costs.