Venkataramana Rao, J.
1. The main question argued in this appeal is whether an application to execute the final decree in a suit on a mortgage is barred by limitation. The relevant dates necessary for its disposal are as follows:
Preliminary decree .. 21st July, 1925.Final decree. .. 9th November, 1925.Decree of the appellate Court confirming thepreliminary decree .. 16th March, 1927.Application for execution .. 15th March, 1930.
2. The learned District Munsif held following the decision in Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) 6 Pat. 780 that the application was not barred by limitation. But the learned Subordinate Judge following the decision of Madhavan Nair, J., in Ahammad Kutty v. Kottekkat Kuttu (1932) 64 M.L.J. 251 : I.L.R. 56 Mad. 458 held that it was barred. The Article of the Limitation Act applicable to the case is Article 182(2):
For the execution of the Three years. (where there has been andecree of a Civil Court appeal) the date of the final decree or order ofthe appellate Court.
3. The view of Madhavan Nair, J., is that the appeal in column 3 must be from the decree or order sought to be executed, that the appeal from the preliminary decree could not be held to be an appeal from the final decree sought to be executed and when there is no appeal against the final decree, limitation would run from the date of the said decree. The view of the learned Judges of the Patna High Court in Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780 which was dissented from by Madhavan Nair, J., is thus expressed by Kulwant Sahay, J., at p. 785:
There is nothing here to show that the appeal must be against the decree sought to be executed. In my opinion the intention of the Legislature in making the provision was that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed.
4. This view was taken in two early cases decided with reference to Article 179(2) of Act XV of 1877 which corresponds to Article 182(2) of the present Limitation Act and the language of both the articles is word for word the same. In Narsingh Sewak Singh v. Madho Das I.L.R. (1882) 4 All. 274, Oldfield and Brodhurst, JJ., observed:
The article makes limitation run, 'where there has been an appeal' from 'the date of the final decree or order of the appellate Court', and we think the appeal contemplated is an appeal in the suit, not necessarily an appeal from the original decree in the suit.
5. In that case...decree was passed on the 23rd August, 1873, but a review of the judgment was admitted and a decree passed on 29th November, 1876, by which the original decree was altered. Then an appeal was preferred by the plaintiff from the decree passed on review, and on a cross-objection taken by the defendant, the decree made on review was set aside by the High Court on the 28th March, 1879. It was held that the time for execution of the original decree ran from the 28th March, 1879, though an appeal therefrom was preferred. So far as I know this decision has never been doubted or dissented from but has since been followed.
6. In Lutful Huq v. Sumbhudin Pattuck I.L.R.(1881) 8 Cal. 248 the facts were as follows: An ex parte decree was passed on 7th February, 1876.On the 15th November, 1876, the defendant made an application to revive the suit. The application was rejected on the 15th November, 1876, and an appeal therefrom was dismissed on the 19th November, 1877. It was held that the limitation for the execution of the decree ran from 19th November, 1877, the date of the final order of the High Court. Morris, J., says:
The application to revive the suit really kept the decree open, and that decree did not become final until the order of the Appellate Court was passed on the 19th December, 1877.
7. I am aware that the above decision was dissented from in Fakir Chand Mandal v. Daiba Charan Parni I.L.R. (1927) 54 Cal. 1052 and Profulla Kumar Basu v. Sm. Sorojbala Basu 35 C.W.N. 155. But I doubt the correctness of the said decisions and other cases which have taken a similar view as, in my opinion, the decisions in Narsingh Sewak Singh v. Madho Das I.L.R. (1882) 4 All. 274 and Lutful Huq v. Sumbhudin Pattuck I.L.R. (1881) 8 Cal. 248 are consistent with the principle enunciated by the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal. 1 :
It is at least an intelligible rule that, so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage.
8. As already stated by me, the decision in Narsingh Sewak Singh v. Madho Das I.L.R. (1882) 4 All. 274 has since been followed in Nagappa Bandappa v. Gurushantappa Shankrappa I.L.R.(1932) 57 Bom. 388 and the interpretation placed on the article by the former decision that the appeal need not necessarily be from the decree sought to be executed was accepted. (Vide Patkar, J., at page 395 and Barlee, J., at page 399.) Madhavan Nair, J., ignores the principle laid down by the Privy Council referred to by me above when he says:
I am not satisfied there is much substance in the argument that the final decree is imperilled by the decree that may be passed by the appellate Court on the appeal against the preliminary decree.
9. The view in Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) 6 Pat. 780 has since been confirmed by another division Bench of the same High Court in Somar Singh v. Devanandan Prasad : AIR1928Pat581 which refused leave to appeal to His Majesty in Council against the said decision, Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780. Dawson Miller, C.J., made the following observations in the course of the judgment with which I agree, namely:
It is further well established that the test in such cases is whether the decree of the appellate Court imperils the validity of the decree it is sought to execute. There can be no doubt that the appeal to the High Court from the preliminary decree, had it been successful, would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only an appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which after all is merely part of the machinery prescribed for carrying out the direction for sale contained in the preliminary decree. In these circumstances, it seems to me upon the decided cases and upon the established principles that there is no real substance in the objections taken by the appellant to the decision of this Court.
10. I may also point out that Rankin, C.J., in Profulla Kumar Basu v. Sm. Sorojbala Basu 35 C.W.N. 155, observed that he was not prepared to say that the case in Somar Singh v. Deonandan Prasad Singh I.L.R. 6 Pat. 780 was wrongly decided. Even Madhavan Nair, J., says that the wording of Clause 2 of Article 182 as it stands supports the conclusion arrived at by the learned Judges of the Patna High Court but the context according to him compelled him to take the view he did. I am therefore of opinion that the expression 'where there has been an appeal' means an appeal in the suit which is likely to affect the decree sought to be executed. I therefore respectfully dissent from the decision of Madhavan Nair, J., in Ahammad Kutty v. Kottekkat Kuttu (1932) 64 M.L.J. 251 : I.L.R. 56 Mad. 458 and following the decision in Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) 6 Pat. 780 hold that the application is not barred by limitation.
11. Mr. Kuttikrishna Menon contends that the application for execution of the final decree in this case is not maintainable. His argument is that after the decree of the appellate Court: affirming the preliminary decree there must be a fresh final decree and the decree originally passed in pursuance of the preliminary decree of the first Court is not capable of execution. This objection was not taken in the Courts below and must be deemed to have been abandoned. If the said objection has been taken, it would have been open to the learned District Munsiff to treat the application for execution as an application for a final decree and pass a final decree if it was necessary. Vide Appa Rao v. Krishna Aiyangar I.L.R.(1901) 25 Mad. 537 and Narasimha Rao v. Gangaram : (1908)18MLJ590 . Were it necessary to decide this question, I am of opinion that a fresh application for a final decree or amendment of the original decree is not necessary. In support of his contention Mr. Kuttikrishna Menon relied on the recent decision of Pandalai, J., in Ramaswami Aiyar v. Pakkiri Pathar (1933) 66 M.L.J. 24 : 38 L.W. 946 and the decisions of the Privy Council in Jowad Hussain v. Gendan Singh (1926) 51 M.L.J. 781 : L.R. 53 IndAp 197 : I.L.R. 6 Pat. 24 and Fitzholmes v. Bank of Upper India, Ltd (1926) 52 M.L.J. 366 : L.R. 54 IndAp 52 : I.L.R. 8 Lah. 253. If the decisions are closely examined they do not support his contention. But before doing so, let me refer to the relevant provisions of the Civil Procedure Code in force at the material dates when the various decrees were passed in the case. Under Order 34, r. 4 in a suit for sale, the Court shall pass a preliminary decree ordering an account of the amount due to the mortgagee for principal and interest and for his costs of the suit or declaring the amount so due and directing that if the defendant pays into Court the amount so due on a date within six months from the date of declaring the amount so due to be fixed by the Court the plaintiff shall deliver up to the defendant all title deeds relating to the property and if so required re-transfer the property and if such payment is not made the mortgaged property be sold. Under Rule 5 the Court is bound to pass a final decree either at the instance of the mortgagor or at the instance of the mortgagee when the mortgagor on or before the date fixed either pays the money into Court or commits default. In case the mortgagor pays the money into Court the decree will be directing the mortgagee to deliver possession of the documents of title relating to the mortgaged property and if so required to re-transfer the mortgaged property to the mortgagor or put the mortgagor in possession thereof. If default is committed in payment, the Court is bound to pass a final decree directing the mortgaged property or sufficient portion thereof to be sold. A decree so passed is valid and operative and remains in full force till it is modified or reversed in appeal. Pendency of an appeal from the preliminary decree does not operate as a stay of further proceedings in the suit or the passing of the final decree or the execution thereof unless there has been a stay by the appellate Court. This is the view taken by a Bench of the Allahabad High Court in Khair-un-nissa Bibi v. Oudh Commercial Bank, Ltd I.L.R.(1929) 51 All. 640, and it has since been affirmed by a Full Bench of the Allahabad High Court in Sat Prakash v. Bahal Rai I.L.R.1930) 53 All. 283 . In both the cases the conclusion was reached after an elaborate examination of the provisions of the Code and the relevant decisions including those of the Privy Council. The same view was taken by the learned Judges of the Patna High Court in Iswari Prasad Singh v. Raghubans Lal I.L.R. (1934) Pat. 379. The preliminary decree may be reversed in appeal in which case the final decree goes with it. It may be modified or confirmed. In either case if the final decree already obtained has not been executed the decree-holder can have the decree amended by inserting the correct figure as modified in appeal or by the addition of interest at the contract rate up to the date of the appeal or the decree-holder can apply for a fresh final decree. This is the course pointed out by Pandalai, J., in S.P.S.R. Subramania Ayyar v. Oomer Cotty Haji (1933) 38 L.W. 933. If the decree is being executed there is in my opinion nothing to preclude the execution application being amended as in the case of any decree which is being executed if modified in appeal. If it is a case of a mere affirmance of the decree it is open to the decree-holder to waive the benefit of the interest at the contract rate up to the date of the appeal and he can, if he chooses, have the original decree executed as it stands. There is nothing in law to prevent him from doing so and it is not possible to understand how a decree which was valid and operative ceases to be so by the mere fact that the preliminary decree on which the final decree was passed was confirmed in appeal. In Khair-un-nissa Bibi v. Oudh Commercial Bank, Ltd I.L.R. (1929) 51 All. 640, the final decree in a suit on a mortgage passed during the pendency of an appeal from the preliminary decree which was eventually affirmed by the Court of appeal was held to be valid and binding on the parties and capable of execution. It seems to me that this is the correct view to take under the law as it stands. There is nothing in the decisions of the Privy Council against this view. Both in Jowad Hussain v. Gendan Singh (1926) 51 M.L.J. 781 : L.R. 53 IndAp 197 : I.L.R. 6 Pat. 24 and Fitzholmes v. Bank of Upper India, Ltd. (1926) 52 M.L.J. 366 : L.R. 54 IndAp 52 : I.L.R. 8 Lah. 253. there was no final decree passed during the pendency of the appeal against the preliminary decree. Mr Kutti Krishna Menon relied very strongly on the observations of Banerjee, J., in Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) 39 All. 641 which were approved by the Privy Council in Jowad Hussain v. Gendan Singh (1926) 51 M.L.J. 781 : L.R. 53 IndAp 197 : I.L.R. 6 Pat. 24 . The observations are to the effect that the rule 'contemplates the passing of only one final decree in a suit for sale upon a mortgage '. Both in Jowad Hussain v. Gendan Singh (1926) 51 M.L.J. 781 : L.R. 53 IndAp 197 : I.L.R. 6 Pat. 24 and Fitzholmes v. Bank of Upper India, Ltd. (1926) 52 M.L.J. 366 : L.R. 54 IndAp 52 : I.L.R. 8 Lah. 253. the question that was considered was one of limitation for an application for a final decree. Their Lordships observed that the limitation ran only from the date of the preliminary decree which was confirmed on appeal and which was the only decree in the cause on which the final decree could be passed. Their Lordships were not dealing with the question as to what should happen if a final decree as required by the Code was passed during the pendency of the appeal. In Gajadhar Singh v. Kishan Jiwan Lal I.L.R. (1917) 39 All. 641 also there was no final decree passed during the pendency of an appeal against the preliminary decree and the observations of Banerji, J., therein were explained by the Full Bench of the Allahabad High Court in Sat Prakash v. Bahal Rai I.L.R.(1930) 53 All. 283
We are of opinion that the expression 'it is impossible to hold that there can be more final decrees than one in a suit for sale upon a mortgage ' must mean that on the date when Gajadhar Singh presented his application praying for the final decree to be passed, there could not be more than one final decree, and as the preliminary decree of the trial Court was superseded by the decree passed in appeal, the trial Court could not possibly have made final the original preliminary decree which has ceased to exist.
12. No authority has been cited before me to show that it is obligatory to apply for a fresh final decree. I am therefore of the opinion that it was competent to the plaintiffs to execute the final decree obtained by them as it stood.
13. In the result, I allow the appeal with costs.