Subba Rao, J.
1. This is an appeal against the order of the Ct. of the subordinate Judge of Madura in E. P. No. 76 of 1946. The facts relevant for appreciating the questions raised may be briefly narrated. Thothan Chetti is the lather of Vairavan Chetti. Shanmugham Chetti is the son of Viravan Chetti. Viravan Chetti executed a mtge. in favour of the pltf. in September 1921 for himself & as guardian of his son, deft. 2, for a sum of Rs. 50,000. The mtgee. instituted O. S. No. 114 of 1925 against Vairavan Chetti & his son & obtained a preliminary mtge. decree against the share of Vairavan Chetti on 16-1-1930. Final decree was passed on 30-9-1930. The suit against his son, deft. 2 was dismissed. There were appeal & cross-appeal to the H. C. against that decree being A. S. Nos. 406 & 467 of 1930. On 14-8-1934 the H. C. confirmed the mtge. decree against deft. 1 & passed a simple money decree against deft. 2 to the extent of his share in the family properties. Meanwhile, in execution of the mtge. decree the share of deft. 1 was brought to sale, & for the balance of the amount due a personal decree was obtained against him on 15-11-1932. An appeal was filed to the H. C. against the personal decree, being C. M. A. No. 66 of 1933. That appeal also was heard along with the appeals against the preliminary decree & was dismissed on 14-8-1934. Various applns. were filed in execution of both the money decree & the mtge. decree. After giving credit to the amounts realised, the D. H. filedE. P. No. 76 of 1946 against deft. 1 for the balance of the amount due to him. On 13-12-1944 deft. 1 filed an appln. for relief under Section 14, Madras Agriculturists' Relief Act, the learned Subordinate Judge, by an order dated 2-9-1946, gave the relief. The appeal against that order is C. M. A. No. 644 of 1946, which we have dismissed. In E. P. No. 76 of 1946 the learned Judge directed the D. H. to file a memo of calculation to which the J. D. raised various objections. He also filed several memos on different basis to substantiate his objections. After hearing the objections & expressing his views on the same, the learnea Judge directed the D. H. to file a fresh memo of calculation. He filed a memo on 2-9-1946 claiming Rs. 30,005-14-0 as on 2-9-1948 plus costs of execution. On 3-1-1947 he heard arguments on the question of limitation. Having held that the appln. was not barred by limitation he accepted me memo filed by the D. H. & fixed the amount payable to him at Rs. 30,005-14-0. By an order dated 6-3-1947 E. P. No. 76 of 1947 was amended & the ascertained figure was substituted. Deft. 1 has preferred the above appeal against that order.
2. The learned counsel for the applt. in an exhaustive & careful argument has contended that E. P. No. 76 of 1946 was barred by limitation. He contended that the personal decree against deft. 1 was dated 15-11-1932 & therefore E. P. No. 76 of 1946, which was filed on 4-3-1946, is clearly barred under Section 48, Civil P. C. It may be mentioned at the outset that this point was not pressed before the learned Subordinate Judge. But as it raises a question of law based on facts in regard to which there is no dispute, we allowed the learned counsel to raise that plea for the first time before us. His argument as finally elaborated may he specified under four sub-heads. (1) The personal decree against deft. 1 was made on 15-11-1932. An incompetent appeal was filed against that decree being C. M. A. No. 66 of 1933. That was not a regular appeal, but was filed as a misc. appeal as if against an order, without full C. F. being paid. As no regular appeal was filed the executable personal decree for the purpose of Section 48, C. P. C. was the personal decree passed on 15-11-1932. (2) The order passed by the H. C. dismissing the appeal was not a decree witnin the meaning of Section 2(2), C. P. C. as it is not a decree adjudicating the rights of parties in a regular appeal. (3) As the decree was amended under Section 14, Madras Agriculturists' Relief Act, the rights of parties thereafter are now governed by the amended decree. The execution appln. filed on the basis of the amended decree was not maintainable. The execution appln. should not have been amended after twelve years. In support of his contentions the learned counsel for the applt. cited a long catena of cases. Most of the cases cited deal with principles well settled. We should have thought that the discussion of case-law would be unnecessary; but in view of the persistence with which the cases were pressed on us & to respect the advocacy of the learned counsel we shall proceed to consider them in some detail.
3. Before we deal with the cases, the relevant provision of Section 48, Civil P. C. may be read :
'48 (1) Where an appln. to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh appln. presented after the expiration of twelve years from -
(a) the date of the decree sought to be executed. .........'
4. Under this section the upper limit lor the execution of the decree is fixed at 12 years from the date of the decree. This section corresponds with the 3rd & 4th paras of Section 230 of the Codeof 1882. The relevant provisions of that section are as follows :
'Where an appln. to execute a decree for the payment of money or delivery of other property has been made under this section & granted, no subsequent appln. to execute the same decree shall be granted after the expiration of the 12 years from any of the following dates namely,
(a) the date of the decree sought to be enforced or of the decree, if any, on appeal affirming the same ;
The words 'or of the decree if any on appeal affirming the same' have been omitted in the new section as they are not only redundant but also limit the operation of those words only to an appeal affirming the decree of the Ct. below. There is no particular reason why the decree in an appeal allowing or modifying the dearee of the lower Ct. should be on a different position. The omission of the words removes an ambiguity. Under the present section the terminus a quo for the purpose of Section 48 would be the decree of the appellate Ct. irrespective of the manner of the relief given by the appeal decree. This is on the well established principle that the decree of the first Ct. merges in the appellate decree.
5. The first case cited before us is that of the Judicial Committee in 'Khulna Loan Co. Ltd. v. Jnanendra Nath', 45 I C 436: AIR 1917 P C 85. The mtge. decree in that case directed that the mortgaged properties should be sold & if the proceeds of the sale were insufficient the balance should be realised from other properties & the persons of the J. Ds. The appln. was filed more than 12 years from the date of the decree. It was urged that the appln. was filed within twelve years after the mortgaged properties were sold &, therefore, it was not hit by Section 48, C. P. C. But it was held that the appln., having been filed more than 12 years after the date of the decree, was not executable in view of Section 48, C. P. C. In 'Nandlal v. Dharma : AIR1926All440 , the facts are, the trial Ct. passed a decree on the basis of an award from which no appeal was allowed by law. A so-called appeal was filed to the H. C., but was dismissed on the ground that no appeal lay. An attempt was made to compute the periods of limitation prescribed under Section 48, C. P. C. from the date of the order of the H. C. dismissing the appeal. The learned Judges held that the said order was not a decree affirming the decree of the trial Ct. & therefore there was no appeal decree in which the decree of the trial Ct. could merge. The principle underlying this decision is intelligible. As no appeal lay at all to the H. C., the dismissal of the incompetent appeal was held by the learned Judges not to be a decree within the meaning of the Act. In 'Thandavamurthi v. Durgamba : AIR1928Mad1154 , an appln. was put in after 12 years of the decree for amendment of the execution petn. by adding a prayer of attachment & sale of immoveable properties of the J. Ds. The appln. was amended without notice to the J. Ds. When the properties were attached the J. Ds. objected to the attachment on the ground that by reason of the amendment the D. H. was allowed to evade the provisions of Section 48, C. P. C. The learned Judges pointed out that in appropriate circumstances & for adequate reasons an appln. filed before 12 years could be amended after the expiry of the 12 years, & if so amended, Section 48, C. P. C. had no application. But in that case they agreed with the Ct. below that it was not a fit case for amendment. This case was reld. upon in support of the propositionthat an appln. should not be amended after the expiry of the 12 years. But a perusal of the judgment shows that the learned Judges clearly expressed the contrary view 'Moideen v. Subramanya', (1939) M W N 996 : AIR 1939 Mad 892, is a decision under Article 182 (2), Limitation Act. Though it does not arise under Section 48, C. P. C. this case was pressed into service by analogy. Under Article 182 (2), Limitation Act, the period of limitation would run from the date of the final decree or order of the appellate Ct. or the withdrawal of the appeal. In construing the Article the learned Judge held chat an appeal against an order cancelling the order recording satisfaction of a decree is not a final decree passed in appeal within the meaning of that article. It is an obvious case, as it is impossible to hold that an order in such an appeal is the final decree of the appellate Ct. In 'Ramachandra v. Parasuramayya', I L R 1940 Mad 349 : AIR 1940 Mad 127, the F. B. decided that the period of 12 years laid down by Section 48, C. P, C. snould be computed from the original & not the amended decree. The proposition laid by the P. B. was not questioned by the other side. 'Seetha-rama v. Abdul Rahiman', 1940 M W N 898 AIR 1941 Mad 40, is another case on the interpretation of Article 182 (2), Limitation Act. The learned Judge held that an appeal against an order refusing to record satisfaction would not affect the running of limita,tion. The reason Oi the rule was that the order in appeal did not affect the decree in any way as it continued to remain valid & without modification. In 'Kayambu Pillai In re', ILR 1941 Mad 954 : AIR 1941 Mad 836, the question was whether an order dismissing the appeal for non-compliance with the order requiring security for costs & dismissing the appeal for non-payment of the required C. F. were decrees within the meaning of the definition In Section 2(2) of the Code. The F. B. held that such orders were not decrees within the meaning of Section 2(2), Civil P. C. as they did not embody a final expression of adjudication upon any right claimed or defence set up. In 'Shanmugam In re', ILR 1946 Mad 299 : AIR 1945 Mad 425, Happen J. held that a regular appeal should be filed against a personal decree after paying 'ad valorem' C. F. In 'Nacharammal v. Veerappa : AIR1945Mad485 , a Bench of this Ct. held that the decree to tae executed is that of the appellate court of final jurisdiction where there has been an appeal & the period of 12 years Under Section 48 has to be computed from the date of such appellate decree. In 'Lakshminarasinga v. Balasubramanyam', 1948 M W N 653: AIR 1949 Mad 251, in a partition suit a preliminary decree was passed giving the pltfs. some immediate executable reliefs. Subsequently a final decree was passed. For the relief given in the preliminary decree an E. P. was filed more than 12 years after the date of the preliminary decree, but within 12 years period from the final decree. The learned Judge held that the execution appln. was barred as the criterion date for computing limitation was the date on which the decree became operative. In 'Bhawanipore Banking Corporation v. Gouri Sarma', : 1SCR25 , the S. C. gave an authoritative interpretation of Article 182 (2), Limitation Act. In that case an appln. in a suit on a mtge. Under Section 36, Bengal Money Lenders Act, was dismissed for default. An appln. was taken out under Order 9, Rule 9 for setting aside that order & that was dismissed. An appeal against that order was also dismissed, When it was sought to be argued that the limitation would start not from the date of the final mtge. decree but from thedate of the order in the aforesaid appeal, the learned Judges pointed that the expression 'where there has been an appeal' in the third column must be read with the words in column 1 of Article 182 (2), namely 'for execution of a decree or order of any civil Ct'. So construed, they held that the words 'where there has been an appeal' would not cover an appeal from an order which was passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution. The Allahabad H. C. in 'Bahadur Singh v. Sheo Shankar', : AIR1950All327 , expressed the same view, namely, that an appeal under Article 182 (2) means an appeal from the decree sought to be executed & no other appeal.
6. Prom a consideration of the aforesaid decisions the following principles may be gathered : (1) Under Section 48, C. P. C., the period of 12 years should be computed from the date of the appellate decree as the original decree would merge in that of the appellate Ct. (2) The words 'where there has been an appeal' in Article 182 (2), Limitation Act cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree in execution. If that is so, in the case of Article 182 (2) 'ex hypothesi' such an order in appeal cannot be taken as a starting point for computing the period of 12 years Under Section 48, C. P. C. (3) The order of the appellate Ct. must be a decree within the meaning of Section 2, Clause (2), C. P. C. It will be a decree only if it embodies a normal expression of an adjudication determining the rights of the parties with regard to all or any of the matters in controversy in the suit. (4) The period of 12 years Under Section 48' would be computed from the date of the decree & not from the date when that decree is amended. (5) An execution appln. if filed within 12 years from the date of the decree can be amended in proper cases. (6) A regular appeal lies against the personal decree passed in a mtge. suit & in such an appeal 'ad valorem' C. F. will have to be paid. (7) For the purpose of Section 48, C. P. C. an order dismissing an incompetent appeal cannot give a fresh starting point.
7. On the basis of the aforesaid principles all the contentions of the learned counsel for the applt. will have to be negatived. The first two contentions of the learned counsel are based upon misapprehension of facts. As aforesaid the preliminary decree in O. S. No. 114 of 1925 was passed on 16-1-1930. The personal decree against deft. 1 was made on 15-11-1932. A. S. Nos. 406 & 467 of 1930 were filed against the preliminary mtge. decree. C. M. A. No. 66 of 1933 was filed against the personal decree. The appeals as well as the C. M. A. were heard by 'Ramesam & stone JJ., & they were disposed of on 14-8-1934. That C. M. A. was filed by deft. 1 himself. Neither the resp. nor the Ct. raised the objection that the C. F. paid was insufficient. The appeal was heard on the merits & the learned Judges dismissed the appeal with costs confirming the personal decree made by the Subordinate Ct. The learned counsel contended that C. M. A. No. 66 of 1933 was an Incompetent appeal & the fact that the H. C. decided the case on the merits will not convert an Incompetent appeal into a competent one. We cannot hold that the appeal was an incompetent appeal. The appeal was filed against the personal decree made in the suit. The fact that it was called a 'C. M. A.' is not decisive of the question to be decided. Nor the fact that the applt. treated the decree as an order is conclusive between the parties. The fact remains that an appeal was filed against the personal decree. iF the resp. had taken the plea the Ct perhaps wouldhave insisted upon addl. C. F. to be paid. The fact that an appeal was disposed of. on insufficient C. F. would not make the decision made therein one passed without jurisdiction. So far as the decision in that appeal was concerned, it is binding on the parties, & as it finally adjudicated the right between the parties, it would certainly be a decree within the meaning of Section 2(2), Civil P. C. The learned counsel then pressed on us the same point from a different angle. He argued that the order of the H. C. in C. M. A. No. 66 of 1933 is not a decree as it was not made in a regular appeal Under Section 96, Civil P. C., or in an appeal against an order Under Section 47, C. P. C. & it is only an order within the meaning of Section 2(14), C. P. C. This argument is only a repetition of the first point. As we have held that there was an appeal against the personal decree, the decision of the H. C. would certainly be a decree within the meaning of the definition. We do not also see any merits in the third point. The learned counsel contended that the present appln. on the basis of the original decree would not be maintainable as the rights of the parties are now governed by the amended decree & they should be worked out by separate execution appln. wherein the J. D. would be at liberty to raise pleas open to him. Apart from the fact that this argument was not raised in the Ct. below, we cannot see how the present appln. is not maintainable. The decree that is now sought to be executed is a personal decree passed against deft. 1. It is certainly executable though subject to the statutory provisions of Section 48, C. P. C. Nor do we find any merits in -the learned counsel's fourth point. He argued that the execution petn. should not have been amended after 12 years so as to enable the D. H. to evade the provisions of Section 48, C. P. C. This argument does not come with grace from a person who was responsible for getting the decree amended. At the instance of deft. 1 the decree was amended. Pursuant to the amendment it was necessary for the D. H. to make suitable amendments to the execution appln. The learned Judge in exercise of his discretion allowed suitable: amendments to be carried out in the execution-appln. We cannot say that the order amending the execution appln. was either without jurisdiction or otherwise not valid.
8. The learned counsel then argued that E. P. No. 76 of 1946 is barred by limitation. To appreciate his argument a few facts may be recapitulated. As we have already pointed out, there was a mtge. decree against the share of deft. 1 & then a personal decree for the balance of the amount due after the properties pertaining to his share were sold. Against deft. 2 there was a money decree. The money decree was passed on 14-8-1934. The personal decree against deft. 1 was made on 15-11-1932 & was confirmed on 14-8-1934. In execution of the personal decree against deft. 1, E. P. No. 281 of 1934 was filed for his arrest. He was arrested & that petn. was closed on 24-6-1935. E. F. Nos. 55 of 1935 & 301 of i939 were filed in execution of the money decree against deft. 2. The former was disposed of on 16-11-1937 & the latter on 9-7-1940. E. P. No. 302 of 1939 was filed against deft. 1 for costs, & the costs were recovered on 8-2-1941. E. P. No. 12 of 1941 was then filed against deft. 1 in execution of tiie personal decree & it ended on 4-7-1941. The present appln. No. 76 of 1946 was filed on 4-3-1946. It is obvious from the aforesaid facts that both E. P. Nos. 302 of 1939 & 12 of 1941 would be barred by limitation unless the final orders in E. p. 55 of 1935 & E P. No. 301 of 1939, filed against deft. 2 would save the bar of limitation. The learned Subordinate Judge held that the personal decreeagainst the father & the money decree against the son both spring out of the same debt & passed in the same suit, & therefore for the purpose ofexecution they should be consd. as one decreeagainst both the father & the son. In that viewhe held that the final orders in applns. against the son would save the bar of limitation against the father. The relevant article is Article 182 (5) of the Limitation Act read with the Expln. The material part of the Article reads :
'For the execution of a decree Three years or order of any civil Ct. not provided for by Art, 183 or bya 48, c. p. o., 1908.
Three years5. ***** (Where the appla. next hereinafter mentioned hasbeen made) the date of the final order passed on an appln, made inaccordance with law to the proper Ct. for execution, or to take some stepin aid of execution of the decree or order .....
Expln. 1. - Wherethe dccree or order has been passed severally against more persons thanone, distinguishing portions of the sub-ject matter as payable ordeliverable by each, the application shall take effect against onJy suchof the aflitt persons or their represen-tatives as it may be madeagainst. But where the decree or order has been passed jointly againstmore persons than one, the applications, if made against any one or moreof them, or against his or their representatives, shall take effectagainst them all.'
It is a well recognised principle of construction that in construing the provisions of the Limitation Act equitable considerations are out of place & the strict grammatical meaning of the words is the only safe guide. The crucial point, therefore, is whether the money decree against the son & the mtge. decree against the father can be treated as one decree jointly passed against the father & the son. If it be a joint decree the final order in an execution appln. against the son would certainly save the period of limitation against the father. Unhampered by the decisions which we will immediately refer to we find it difficult to hold that there was a joint decree against the father & the son in O. S. No. 114 of 1925. A perusal of the preliminary decree dated 16-1-1931 in that suit discloses that the Ct. gave the mtge. decree only against deft. 1's share in the family properties. The final decree also deals only with the liability of the father in regard to his share.
9. The personal decree of 1932 was passed for the balance of the amount due to him after his share was sold. The money decree against the son was made in August 1934. The two decrees therefore were passed on different dates. Under the decrees the amounts would be realisable from their respective shares. The mtge. decree was executable from the date it was made absolute, & the money decree from the date it was passed. The date of the decree, the manner of realisation & the starting point of limitation are different. The only common feature is that the liability is the same & the payment or realisation in execution of one decree would 'pro tanto' go in discharge of the other decree. But, in our view, this in itself cannot make the two separate decrees as one joint decree. One can visualise a situation when the decree against the father is barred by limitation whereas that against the son is kept alive or 'vice versa'. If the preliminary decree on the mtge. & the money decree against deft. 2 were passed on the same date, the money decree might get barred even before the final decree in the mtge. suit was passed. We therefore holdthat there was no joint decree against the father & the son within the meaning of the Expln., & if so, the execution appln. against the father is barred by limitation.
10. We shall now proceed to consider the cases cited on either side to discover, if possible, the meaning to be attributed to the words 'decree or order passed jointly against more persons than one'. In 'Appu Rao v. Ramakrishna', 24 Mad 672, there was a decree directing the deft. to execute a muchilika, & in appeal that decree was confirmed, but costs also were awarded to the pltf. The question was whether the previous applns. for recovery of costs incidental to the execution proceedings could be reld. upon to save the bar of limitation against the decree for theexecution of the muchilika. The learned Judges held that the execution appln. was barred by limitation as the previous appln. did not relate to the execution of the decree or any part of it. According to the Madras H. C., a decree is a joint decree within the meaning of Expln. I to Article 182 if any one of the reliefs given in the decree is against the defts. jointly even though some other reliefs may be given against the dei'ts. separately, so that if in respect of the joint relief an appln. for execution is made against one of them, it will save limitation in regard to the other defts. even in respect of the reliefs which have been decreed against them solely, that is separately. The leading case taking this view is found in 'Subramania v. Alagappa', 30 Mad 268: 2 M L T 189. There a decree awarded mesne profits against A & B jointly & costs jointly against A, B & C An appln. to execute the decree for mesne profits against A & B, the learned Judges held, kept alive the right to execute the decree for costs against C under Part 2 of para, 2 of the Expln. I to Article 182, Limitation Act. At p. 269 they observe :
'reading the second part of the para, liberally, there can be no doubt that it applies. There has been a joint decree against more persons than one & there has been an appln. in execution of that decree against two of these persons & this appln. takes effect against all the persons against whom the joint decree was passed.'
The decision has been cited with approval in 'Puttayya v. Puttanayya', 47 M L J 608: AIR 1925 Mad 152; 'Pararneswaran v. Seshan Pattar', 51 Mad 583: AIR 1928 Mad 627. In 'Mahomed Sahoob v. Mayamad Aminal', 65 M L J 582: AIR 1933 Mad 789, the same principle was applied. Though the H .C. of Calcutta also expressed a similar view, the Allahabad H. C. struck a dissenting note. In 'Nand Lal v. Dharamkirti : AIR1926All440 , the learned Judges observe.
'We think that where a decree is jointly passed against all the defts. in one matter & severally against different defts. with respect to other matters, the first portion of Expln. I of Article 182 should apply to decrees passed severally, & the second portion of Expln. I to the decree or decrees passed jointly. We find ourselves unable to agree with the opinion of the Madras H. C.'
In 'Ram Brich Rai v. Deoo Tiwari', : AIR1922All388 , the facts were, in a suit against the members of a joint Hindu family based on a mtge. of the family properties it was found that a portion only of the mtge. debt was incurred for legal necessity. As to such portion as was supported by legal necessity the usual mtge. decree was passed against all the defts. Simultaneously a simple money decree for the balance was passed against two executants of thebond la suit. The D. H. first executed the decree so far as it was a decree for sale & then within three years of this, though more than three years from the date of the decree, applied for execution of the simple money decree partly by arrest of one of the J. Ds. The learned Judges held the appln. was within time. At p. 168 the reason of the decision is put in these words :
'In this case a decree was passed against all the defts. with regard to part of the mtge. money & this too, with regard to the same property. It seems to us that this was really one decree for the whole of the mtge. money.'
The facts bring that case within liberal interpretation of the Expln. As there was a joint decree against all the defts. though in regard to a part of the claim it would be a joint decree even according to the Madras view. The Patna H. C. had an occasion to deal with the scope of Expln. I to Article 182, Limitation Act in 'Bishun Chand v. Abhoykumar', : AIR1924Pat700 The facts in that case were : a mtge. was executed in respect of two properties D & S. S had been sold for arrears of revenue, but the deft. Abhoy Kumar was in possession of the balance of the sale proceeds after the arrears of revenue were paid. A decree was passed on that mtge. for recovery of the amount by the sale of Sen. D. property & also for recovery of the Rs. 715 from the money in the hands of Abhoykumar. The question in that case was whether the order in the first appln. of the sale of the properties D would save the bar of limitation for the appln. for the realisation of the amount in the hands of Abhoykumar. The learned Judges held that the execution appln. was not barred & made tne following observation at p. 703 :
'It appears to me that the main relief, the realisation of the mtge. dues being the one governing note of the decree, makes the two sources of realization interdependent. This is the reason why a mtgee. is entitled to proceed against one of his securities at a time, if he thinks it to be sufficient for realisation.'
From the facts it is obvious that the sum of Rs. 715 was only the substituted security in the place of the property S, being the balance of the realizations from the sale of the said property. The debt was the mtge. debt. It was realisable from & out of the mtged. properties. The realisations from one or the other would 'pro tanto' go to reduce the liability of the other. In the circumstances of the case, the learned Judges held that the decree was really one decree for the whole of the mtge. money. In 'Motilal v. Champa Lal : AIR1929All795 , the D. H. obtained a simple money decree against three brothers. The decree was passed against all the three brothers. But so far as two of them were concerned, the decree was made recoverable only from the family properties in their hands. The learned Judges held for the purpose of appln. of Expln. I that the mere fact that the decree differentiated between the J. Ds. as regards the mode of execution did not affect the fact that all of them were jointly liable for the decretal amount. The Calcutta H. C. had expressed its view on the interpretation of Article 182, Expln. I of Schedule I, Limitation Act in a decision reported in 'Charu Chandra v. Hrishikesh Roy : AIR1937Cal547 . In that case, in a mtge. suit a joint decree was passed against all the J. Ds. & a personal decree was passed for costs against a particular J. D. The question was whether an appln. for execution of the joint decree would keep alive the entire decree including a portion granting separate relief which was not executed. At p. 319 the learned Judges ap-plied the following test, namely, whether the separate relief given against a particular J. D. was really a part of the joint decree passed against all the J. Ds. Applying the test, the learned Judges ruled that the decree for costs against the particular J. D. did not form part of the final mtge. decree & therefore, the money decree was riot kept alive. 'Hanumanjee v. Surajdeo Narain'. : AIR1944Pat188 , is rather instructive. In that case a decree passed in 1937 provided that a certain sum of money was to be realised by the sale of the mtged. properties after the expiry of the period of grace & that there would be a separate money decree for another sum. The mtge. portion of the decree was made final in 1939, but no mention was made therein of the money portion of the earlier decree. Execution of the final decree was taken cut in 1939. The D. H. applied in 1941 for the execution of the money portion of the decree of 1937. The teamed Judges held that the decree in 1937 was partly preliminary & partly final & Expln. I of Article 182 could not be applied to such a decree. 'Sivalinga v. Srinivasa : (1947)2MLJ583 , was reld. upon for the contention. that where a father & son are sued & there is a decree both against the father & the son, the decree as against the son will become barred by limitation if an appln. is not made within the time prescribed by Article 182, notwithstanding that for one reason or other execution of the decree against the father is not barred by limitation. The learned Judges held that in such a case for the purpose of limitation the decree against the son must be looked at independently, from the decree against the father. The learned Judges in that case were not dealing with the Expln. with which, we are now concerned. The Bombay H. C. in a case reported in 'Dhulasaheb v. Bijapur Municipality', : AIR1949Bom260 , dissented from the Madras view & held that the expln. would not apply in a case where a decree is partly joint & partly several. At p. 255 Chagla, C. J. commented on the decision reported, in 'Subramania Chettiar v. Alagappa Chettiar', 30 Mad 268: 2 M L T 189, as follows:
'With very great respect I am unable to agree with this view of the Madras H. C. It is difficult to understand why even a literal interpretation of the second para. of Expln. to Article 182, should drive one to the conclusion to which the Madras H. C. seems to have been driven. When the Expln. speaks of a decree, it must include a decree or part of a decree or a portion of a decree, & putting that interpretation upon the second para, of the Expln. it is easy to reconcile all difficulties & to come to a solution which is ,iot illogical or anomalous.'
Though we cannot say that there is no force in the comment, we are bound by the Madras view. From a consideration of the aforesaid decisions the law on the subject may be stated thus : The words in the expln. are clear & they can be appld. only to decrees that have been passed jointly against more persons than one. The question in each case is whether the decree is a joint decree within the meaning of the expln. If there is a joint decree against all the defts. the fact that the same decree gives a separate relief against one of the defts. does not make it any the less a joint decree within the meaning of the Expln. The Madras view on this subject is unanimous & though the Calcutta H. C. struck a different note, we prefer to follow the Madras view. Though a joint decree may be passed against all & a separate decree against some of them, the said decrees, though in form separate, are so interdependent that in certain circumstances may be treated asa joint decree. But we cannot Introduce equitable considerations in construing the express words used in the Expln. & hold that decrees which are In form & substance separate decrees are in effect a joint decree within the meaning of the expln. in the present case, there were two separate decrees, one a money decree & the other a mtge. decree. They were passed against different defendants. They became executable at different times & the amount was realisable from different properties. It is also conceivable the money decree getting barred long before a final decree is passed. We would be introducing a fiction if we held that an immediate executable money decree against one person is a joint decree against him & another against whom a preliminary mtge. decree was passed. The fact that the debt was the same & that any payment towards or in discharge of the money decree or the mtge. decree, as the case may be, might 'pro tanto' discharge the other in itself cannot be a ground for holding both the decrees as one joint decree against the deits. It may be reasonable to hold so but it would be doing violence to the language of the expln. We therefore hold that the execution applns. filed against deft. 2 would not save the bar of limitation against deft. 1.
11. Even so, it was argued by Mr. Rama Rao Sahib that that plea is not open to deft. 1 at this stage on the principle of constructive 'res judicata'. E. P. No. 12 of 1941 was filed by the D. H. on 3-1-1941 for executing the decree for a sum of Rs. 1,47,307-14-6. The relief asked for was the attachment of the excess sale proceeds due to deft. 1 which was in deposit to the credit of E. P. No. 302 of 1939. Notice was issued to the deft. l. He was served on 12-3-1941 & tie filed a counter on 29-3-1941. The appln. was posted for trial to 5-4-1941. The learned Judge passed the following order :
'There is no plea worth consideration. The D. H. cannot be asked to enforce some other remedy just to oblige this deft. Attachment effected will stand. Petnr. may apply for a cheque.'
E. P. No. 161 of 1942 was filed on 20-7-1942 for executing the personal decree against (left. 1. The relief asked in that appln. was for attachment of Bale proceeds in E. P. No. 41 of 1911 in O. S. No. 75 of 1934. Notice was served on deft. 1 in person & deft. l filed a counter stating that he had no interest & he had no objection. The amount was attached & transferred to the credit of O. S. No. 114 of 1925 & was paid towards the decree. In both these applns. the deft. 1 should have taken the plca that the appln. was barred by limitation. As such a plea was not taken & as execution was ordered, in our view the J. D. is now precluded on the principle of constructive 'res judicata' to raise the plea of limitation over again. The appln. of the principles of constructive 'res judicata' to orders in execution has been decided as early as 1882. In 'Mungul Pershad v. Grija Kant', 8 Cal 51 : 8 I A 123 , the Judicial Committee held that where an execution petn. was barred by limitation but execution had been ordered to proceed it was not open to the J. D. in a subsequent appln. to plead that the former appln. was barred by limitation. The same principle had been applied & folld. by the Judicial Committee in a later decision reported in Rajah of Ramnad v. Veluswami Thevar', 40 M L J 197: AIR 1921 P C 23. In 'Adhilakshmi Ammal v. Srinivasa', (1944) 1 M L J 36: AIR 1914 Mad 193, Horwill J. held that the order in a previous appln. directing the sale of the properties would bar the J. D. from raising the plea in a subsequent appln. that It was barred by limitation. An exhaustive discussion of the appln. of the principles of constructive 'res judicata' to execution proceedings will befound in 'Venkataranga v. Chlnna Sithamma : AIR1941Mad440 . The facts of that case are, a decree for mesne profits had been passed against a Hindu father & his undivided minor sons, directing recovery of the profits from the father personally & from the family properties of all of them. An appln. for execution was instituted against the father alone, but he did not appear & oppose the appln. as being time-barred despite notice to him. The learned Judges held that the order passed in such an appln. would preclude Mm from raisins a plea of limitation in subsequent proceedings, even though the appln. on which the order was passed did not fructify & was eventually dismissed. We respectfully agree with the view expressed in that (judgment. But the learned counsel for the applt. contended that the principle of constructive 'ree judicata' should be very cautiously applied to execution proceedings & that in this case his client did not raise the plea of limitation in those two applns. as his client was bound to pay the costs awarded against him in execution proceedings. In the Ct. below this plea, namely, that he did not press his plea of limitation as the orders for payment of execution costs passed against him went not barred by limitation. (Sic) (was not taken?). Indeed, a perusal of the execution applns. show that the personal decree was being executed & not any orders for costs. In our view, the present contention is only an afterthought. Learned counsel. for the applt. reld. upon the decision in 'Kailasa Thevar v. Ramaswami', 1948 M W N 393: AIR 1919 Mad 238. But the facts in that case-are different. Following the earlier decisions the learned Judges held that objections as to the amount of the decree could be raised in later execution proceedings though they were not raised in prior execution proceedings. We therefore hold that the orders in E. P. Nos. 12 of 1941 & 161 of 1942 preclude the applt. on the principle of constructive 'res judicata' from raising the plea of limitation in the present E. P.
12. The learned counsel for the applt then contended that the figure of Rs. 30,005-14-0 is not correct. The first objection raised by him relates to 2 items of Rs. 24,300 & Rs. 42,513/-. The sum of Rs. 24,300 represents the amount for which the J. Ds' properties were sold on 13-7-1936 in E. P. No. 55 of 1935. The sum of Rs. 42,513 was credited towards the decree on 11-1-1932. It represents the sale proceeds in regard to the sale of deft. 1's properties on 5-10-1931 in E. P. No. 48 of 1931. The learned advocate's argument is that those two amounts were credited towards the decree on the date of the confirmation of the sales whereas they should have been credited on the date of the sale itself. This would make a difference in interest. He reld. upon Section 65, C. P, C. Under that section where immoveable property is sold in execution of a decree & such sale has become absolute the property would be deemed to have vested in the purchaser from the time the property is sold & not from the time when the sale becomes absolute. Under this section the vesting of the property is thus made to relate back to the date of the sale. Relying upon this section the learned counsel pressed on us to hold that the sale price should have been credited on the date of the sale itself. We think there is considerable force in this argument. When the D. H. purchaser becomes the owner of the property from the date of the sale itself it follows that the debt was 'pro tanto' reduced from that date. But the learned counsel for the resp. contended that he had not taken possession. The fact that he did not take possession could not confer on him higher right than that which flows from the provisions of Section 65 Civil P. C.As he became the owner of the properties on the dates of the sale it may be open to him to take appropriate proceedings for the mesne profits from the date of the sale itself. It is then contended that this point was not raised in regard to the second item of Rs. 42,513/-. But as the facts are not in dispute we cannot reject the plea of the applt. on that ground. We therefore direct these two items to be credited towards the decree on the dates of the sale, that is, 13-7-1936 in the case of Rs. 24,300/- & 5-10-1931 in the case of Rs. 42,513 /-.
13. It is then contended that the Ct. below was wrong in directing his client to pay the entire costs of Rs. 4,343-12-7. His argument is that as the decree was split up the costs also should be split up as the costs in O. S. 114 of 1925 were awarded on the entire claim. Apart from the fact that this point was not taken in the Ct. below, we are of opinion that there is no merit in this contention. The costs in question were awarded only against deft. 1 & that decree had become anal. In I. A. No. 11 of 1945 the learned Judge, though he apportioned the debt between the J. Ds., directed that full costs should be paid by the defts. in O. S. No. 114 of 1925. That order also had become final as we dismissed the appeal. Apart from that if we accept the argument of the learned counsel logically the costs awarded in O. S. No. 75 of 1934 & 114 of 1925 should be clubbed together & divided in equal shares between the defts. in both the suits. If so calculated, we find he has to pay a higher amount than that he has to pay under the decree. We therefore negative this objection also.
14. Then the learned counsel put before us a memo filed by him in the Ct. below dated 12-11-1946 & contended that we should accept that memo. A perusal of that memo shows that he calculated on the apportioned principal compound interest at 12 per cent till the date of the decree & thereafter at 6 per cent simple interest on the apportioned principal amount. This is contrary to the express terms of the preliminary decree. Under the preliminary decree the principal amount was directed to be paid at 12 per cent compound interest till the date of the decree & thereafter at 6 per cent, on the total amount. The calculation accepted by the lower Ct. folld. the directions in the preliminary decree. The fact that the applt. was able to get a relief under Section 14, Madras Agriculturists' Relief Act would not, in our view, enable him to reopen or question the directions in regard to the interest given in the preliminary decree.
15. Mr. Ramabhadra Aiyar then contended that a sum of Rs. 1,550/- attached in E. P. No. 158 of 1944 was not credited towards the decree. Mr. Rama Rao Sahib says that this sum was not drawn out by his client. The lower Ct. will ascertain whether the said amount was drawn out by the resp. or whether that amount is in deposit in Ct. to be credited towards the decree. If such amount is available or already drawn out the Ct. will give credit towards the decree.
16. In the result, the appeal is allowed tn part. The parties will pay & receive proportionate costs. The lower Ct. will proceed with the execution after allowing the D. H. to make suitable amendments as per our directions.
C. M. A. 128747 : No separate arguments were addressed in this appeal. This appeal is therefore dismissed, but in the circumstances, without costs.