(1) This second appeal is preferred by the decree-holder is O.S. No. 125 of 1948 on the file of the Court of the Subordinate Judge, Devakottai. He filed E. P. No. 112 of 1954 in that suit for bringing the mortgaged properties to sale in execution of the mortgage decree which he had obtained. An objection was taken to this execution by the judgment debtor based upon limitation, and this objection found favour with both the lower courts and the execution petition was dismissed as barred by time. Hence the appeal.
(2) The few facts necessary to appreciate the contention are the following: A preliminary mortgage decree was obtained on 31-8-1949. A final decree followed on 10-3-1950. In the meantime, an appeal had been preferred by the judgment debtor against the preliminary decree of the trial court, and this appeal was disposed of on 16-1-1951. It is common ground that the appeal of the judgment debtor was dismissed. But the cross objection preferred by the decree-holder which related to costs of the mortgage suit was allowed. By the decree of the appellate court, the decree-holder was given a personal decree for costs against the judgment debtor. When the appeal was pending, the decree-holder filed E. P. No. 165 of 1950 on 4-7-1950 for bringing the mortgaged properties to sale. However, he did not obtain satisfaction in that execution petition, which was dismissed on 31-7-1951. Then, he brought E. P. No. 112 of 1954, out of which the present appeal has arisen. This execution petition which is the second petition was filed on 9-4-1954. The lower courts took the view that this execution petition was barred by time as it was filed more than 3 years from the date of the appellate decree.
(3) Both the lower courts have misconstrued the effect of the decisions cited before them and also Art. 182 of the First Schedule to the Limitation Act, which governs the question of limitation for execution petitions. There are so many as six clauses to this Article in Col. 3, which relates t the time from which the period begins to run. Clause 1 in Col. 3 of Art. 182 mentions the starting point as the date of the decree or order. Clause 2 mentions the starting point as the date of the decree or order of the appellate court where there has been an appeal, Clause 3 deals with a case where there has been a review of judgment. Clause 4 deals with a case where the decree has been amended. Clause 5 which directly applies to this case is in these terms:
"Where the application next hereinafter mentioned has been made, the date of the final order passed on an application under in accordance with law to the proper court for execution, or to take some step-in-aid of execution of the decree or order." Without referring to any authorities on the question, if the plain words of the section are applied, a second execution petition will fall under cl. 5 of Art. 182 and will be in time if it is filed within 3 years from the date of the final order passed on the first execution petition, provided the first execution petition was in accordance with law.
(4) Mr. Ramachandra Aiyar, learned counsel for the respondents, valiantly argued that the first execution petition in this case was not in accordance with law, because, after a decree is varied or confirmed or reversed by an appellate court, it is the decree of the appellate court alone that is executable. However, he conceded fairly enough that, if, before a decree could be passed by the appellate court, the decree of the trial court is executable and has been executed, such execution would not (Sic) be in accordance with law. It is indisputable that the mere pendency of an appeal against a decree does not operate as stay of execution of that decree.
That being so, I am unable to find any reason why, if execution of the trial court's final decree in a mortgage suit for sale of the hypotheca during the pendency of the appeal would be in accordance with law, an execution petition preferred for that purpose should not be treated as one in accordance with law. Certainly, if execution of the final decree was legal during the pendency of the appeal the execution petition must necessarily be deemed to be one in accordance with law, and, therefore, falling under cl. 5 in Col. 3 of Art. 182. From the final order in such an execution application, the decree-holder would have the benefit of counting three years for the second execution petition.
The only objection which Mr. Ramachandra Aiyar urges against this view is that, in such a case, a second execution petition would not be execution of the appellate court's decree, but would be execution of the original final decree unmodified by the appellate court's decree. I am unable to find any substance in this argument. It has been held in the Full Bench decision in Sivaramachari v. Anjaneya Chetti, and in Periakaruppan Chettiar v. Venugopal Pillai,
1946-1 Mad LJ 347: (AIR 1946 Mad 383), and V. Subbarao v. Kesavayya, . that, in a case where a preliminary mortgage decree is varied or modified by an appellate court decree, the modification must be deemed to have been automatically incorporated in the decree of the trial court and the second execution petition must be deemed to be one which seeks execution of the trial court's final decree as modified by the appellate court's decree. In the case of mortgage suits, these authorities are uniform and do not give any room for the contention that a different interpretation is possible. The learned District Judge distinguished the decision in 1946-1 Mad LJ 347: (AIR 1946 Mad 383) relying on the following sentence which occurs at p. 351 of the report (Mad LJ): (at p. 386 of AIR):
"We do not think that, so long as the decree itself has been kept alive, there can be a bar of limitation to an application of this sort. Such application really calls upon the court to carry out modifications, which in law automatically take place in the final decree already passed before the decree of the appellate court."
This sentence was intended to meet the argument that the application for amendment of the decree of the trial court to be made by the decree-holder after the appellate court had passed its decree, should be within time to enable the decree-holder to execute the appellate decree. That argument is repelled by the Bench by the observation that, so long as the decree itself is kept alive in the sense of its being not barred by limitation for the purpose of execution, any application by the decree-holder for bringing the trial court's final decree into conformity with the decree of the appellate court would certainly be in time.
The learned District Judge has misunderstood this observation to mean that the decree in the case now before me was not kept alive on the date when the second execution petition was filed. For this purpose, he made use of the principle that, after a decree is modified by an appellate decree, it is the appellate decree alone that is capable of execution. That principle has nothing to do with finding out if E. P. No. 112 of 1954 was in time. There is a lucid exposition of the scheme of Art. 182 at pages 285 and 286 of the report (ILR Mad): (at p. 963 of AIR) in the Full Bench decision cited above.
The central idea expounded therein is that the various clauses appearing in Art. 182, Column 3 are disjunctive. That is to say, the decree-holder has the option of taking the benefit of any one clause in any case for contending that execution was within time. That does not mean that cl. (2) therein precludes the applicability of either cl. 5 or cl. 1 in any case where an appeal has been preferred. In this case, it is cl. 5 that helps the decree-holder to file the second execution application; and, if cl.5 applies, it is immaterial whether the execution petition would be in time under cl. 2. E. P. No. 112 of 1954 was therefore in time.
(5) This appeal is allowed, and the orders of both the lower courts are set aside. The costs of the appeal will be paid by the respondents.
(6) Execution will proceed from the stage at which it was left when the execution petition was dismissed by the first court.
(7) Appeal allowed.