(1) This is an appeal under the Letters Patent from the judgment of Ramaswami, J, in CMSA No. 102 of 1957 with his leave. It arises in the execution of the decree passed in O. S. No. 128 of 1945 on the file of the Subordinate Judge of Tiruchirepalli on 16-3-1946. The material part of this decree runs as follows :
"This court doth order and decree that the defendants do put the plaintiff in possession of the property mentioned in the schedule hereunder and to day the plaintiff Rs. 135 for past mesne profits. This court doth further order and decree--(1) that the claim, for the balance of past mesne profits must be dismissed without costs. (2) that the mesne profits from date of plaint be determined by a separate petition under Or. 20 rule 12, C.P.C. (3) that the defendants do pay the plaintiff the sum of Rs. 42-6-0 being his proportionate costs in the suit and do bear their own costs Rs. 26."
(2) E. P. No. 278 of 1946 was filed by the decreeholder for delivery of possession in pursuance of this decree. His petition was dismissed on 24-2-1947, for non payment of batta. On 16-3-1949, an application was filed under Or. 20 rule 12 C. P. C by the plaintiff IA No. 476 of 1949, for ascertaining mesne profits and payment of the same. That petition was first dismissed, but eventually the learned District Judge of Tiruchirapalli passed a decree on 10-3-1953 for Rs. 1310-1-0 as future mesne profits. On 13-11-1954, the original decreeholder's legal representatives, the present appellants before us, filed EP No. 64 of 1955 for delivery of possession and for attachment and sale of moveables of the defendants in execution of the decree. The reliefs sought in this execution petition were realisation of the amount due for mesne profits and subsequent costs by attachment and sale of the moveables of the defendants and for delivery of properties decreed in favour of the second plaintiff (first petitioner) on behalf of both the petitioner. Subsequently the execution petition was confirmed to the relief of possession. The learned Subordinate Judge of Tiruchirapalli dismissed the execution petition as barred by time and his decision was confirmed by the learned District Judge of Tiruchirapalli on appeal. Then followed the civil miscellaneous second appeal (102 of 1957) filed by the decreeholder's legal representatives, which was also dismissed by Ramaswami, J. Hence this appeal.
(3) Mr. T. M. Krishnaswami Aiyar, learned counsel for the appellants, contended that there could only be one decree in a suit and in this case that decree in its complete form must be deemed to have been passed only on 10-3-1953, when the learned District Judge passed a decree for mesne profits. That would be the date from which time would run, and as the present E. P., was filed in 1954 it was well within time. Though there was a prior execution petition filed to execute the decree for possession and that was dismissed in 1947, the decreeholders could file a new execution petition without any reference to the previous petition for the execution of the complete decree, which must be deemed to have been passed in 1953. Though he cited to us several decisions of this court, viz, Vydianatha Aiyar, v. Subramania Patter, ILR 36 Mad 104, Kannaimmal v. Balakrishna, AIR 1935 Mad 557,Lakshminarasimham v. Suryanarayana, 1947-2 Mad LJ 443 : (AIR 1948 Mad 246), Basavayya v. Guruvayya, and Sivaramachari v.
Anjaneya Chetty, the only decision which requires our consideration is the decision in ILR 36 Mad 104. In none of the other cases did the point which directly arises before us in this appeal was dealt with either directly or indirectly. AIR 1935 Mad 557 was a case where there was an appeal and clause (2) of the Third column of Art. 182 of the Limitation Act specially provided that where there is an appeal, time would run only from the date of the appellate decree. The scope of cl. (5) of the third column of Art. 182 of the Act was discussed in 1947-2 Mad LJ 443 : (AIR 1948 Mad 246). Neither of the two decisions in and has anything to do
with the question, which falls for decision in this case.
(4) The decision in ILR 36 Mad 104 undoubtedly appears at first sight to support the appellant's contention. In that case a decree in a second appeal was passed on 30-7-1906, which ran as follows :
"Appellant (defendant) to pay respondent (plaintiff) Rs. 64-11-4 for his costs in this second appeal, Rs. 78-3-7 for his costs in the memorandum of objections and also his costs in the lower appellate court which will be ascertained and taxed by that court.
The costs in the lower appellate court were ascertained by that court on 1-12-1906. The application for the execution of the whole decree was made on 7-8-1909, i.e. more that three years after the decree in second appeal, but within three years after ascertainment by the lower appellate court. It was held by a Division Bench of this court (Benson and Sundara Aiyar, JJ) that the execution of the decree was not barred. It was contended before the learned Judges that though the execution was not barred so far as it related to the costs of the lower appellate court, the rest of the decree for costs was barred as execution could have been applied for with respect to it immediately after the date of the decree of this court in second appeal. The learned Judge rejected the contention applying by analogy the principle well-established relating to the execution of a decree which was the subject matter of an appeal in whole or in part. They held that in the case before them the decree must be taken as a whole for deciding the question of limitation.
(5) Mr. T. M. Krishnaswami Aiyar strongly pressed upon us this decision as fully supporting his contention. But there are observations in the same judgment, which are very important, though they are hypothetical. The learned Judges say :
"If the direction were that the costs of the lower appellate court should be paid when ascertained by the Subordinate court, the case might be different. We are of opinion that the decree must be interpreted as one for payment of a certain sum of money composed of three items, and one of these items, namely, the costs of the lower appellate court was not ascertained until the 1st December 1906."
It was evidently the view of the learned Judges that if the decree had been for the payment of costs of the second appeal and the memorandum of objections and the decree also directed the payment of the costs of the lower appellate court when ascertained by that court, then the decree in so far as it directed payment of the costs in the High Court, time would run from the date of the decree in the second appeal; but so far as the costs of the lower appellate court were concerned, time would run only from the date on which they were ascertained by the lower appellate court. In our opinion, the case before us must be governed by this rule. Here there was a decree passed on 16-3-1946 directing delivery of possession and in the absence of any mention of time, the decree for possession became executable from the date of the decree. There was not even a decree as such for payment of mesne profits from the date of plaint. The decree only directed that the mesne profits from the date of plaint be determined by a separate petition under O. 20, R. 12 C.P.C. There is no analogy between the decree in the present case and the decree in ILR 36 Mad 104 which the learned Judges construed as a decree for payment of a certain sum of money, though composed of three items. The learned Judges in that case refused to follow a judgment of Subramania Aiyar and Boddam JJ., in C. M. A. No. 74 of 1903, which is unreported, but was brought to their notice. In that case the decree directed payment of costs and mesne profits, mesne profits being left to be ascertained subsequently in execution. The application for execution was presented more than three years after the decree, but within that period after the ascertainment of the mesne profits. The learned Judges held that the application was barred with respect to the costs, but not with regard to the mesne profits. The learned Judges in ILR 36 Mad 104 found themselves unable to follow the decision. They observed as follows :
"With all deference to the learned Judges, we are unable to follow the decision. The policy of the Limitation Act in the case of execution of decrees is in our opinion to lay down a simple rule and to treat the decree as a whole except when the decree itself directs that different portions of the relief granted are to be rendered by the defendant to the decreeholder at different times."
It may be that the decree in the unreported case can be construed as a decree for payment of a certain sum of money composed of two items, namely, costs and mesne profits, and as one item had remained to be ascertained and the decree in its entirely could be enforced. Clause (1) of the third column of Art. 182 clearly rectifies the date of the decree or order as the time from which period begins to run for the execution of the decree. So far as the relief of possession is concerned, the date of the decree must be taken to be 16th March 1946.
(6) There is another way in which the question may be approached, having regard to what has happened in this case. Clause 5 of Col. 3 of Art. 182 prescribes that the time for execution of a decree would be three years from the date of the final order passed on an application made to the proper court for execution or to take some step in aid of the execution of the decree or order. It has been held that such an application need not be for the execution of the entire decree. One of the decisions cited by Mr. T. M. Krishnaswami Aiyar is authority for this position-1947-2 Mad LJ 443 : (AIR 1948 Mad 246). E. P. No. 278 of 1946 was an application in accordance with law to the proper court for execution of the decree in the suit. No doubt that related only to the relief of possession. The final order passed on that execution petition was on 24-2-1947. A second application, whether it be for the relief of possession, or for mesne profits, or for both, should have been filed within three years from the date of that order. It is true that the mesne profits were not determined till 1953, but if the decreeholder wanted to keep alive the decree, it was his duty to have filed an application for execution within three years from the date of the dismissal of E. P. No. 278 of 1946, part of the application must stand dismissed with this provision.
(7) though it was not cited before us, we have been able to find one decision of the Calcutta High Court, which appears to be on principle directly in point. In Satishchandra v. Sarat Kamini Devi, AIR 1929 Cal 383, a decree was passed on 23-1-1922 for possession as well as mesne profits. The order was made by the lower appellate court for sending the case to the trial Court for ascertainment of mesne profits. The defendant appealed against the decree to the High Court. That appeal was dismissed on 17-7-1923. Subsequently an enquiry was made as to the amount of mesne profits according to Order 20 Rule 12 C.P.C. This was on 30-4-1926. On 24-3-1927 the decreeholder applied for execution of the decree, both for delivery of possession as also for recovery of mesne profits. The courts below had held that time should run from the date of the final disposal of the case, namely, from the date when mesne profits were assessed, that is, in April 1926. The judgment debtor contended that limitation for the execution of the decree for possession ran from 17th July 1928, when the appeal to the High Court was dismissed. The contention on behalf of the decreeholder was that the courts were right in holding that limitation ran from April 1926 on the ground that it was an entire decree which the decreeholder was entitled to execute and so long as the mesne profits had not been ascertained, the decree was only a preliminary one. The learned Judges accepted the contention of the judgment debtor. We agree entirely with the reasoning of the learned Judges and we extract it below :
"Now a suit for possession as well as mesne profits, may be taken to be a suit for two claims joined together for which two separate suits may be brought. Or. II, R. 4 C.P.C. entitles the plaintiff to joint the two claims for possession and mesne profits in one suit. When a decree is made for possession, that portion of the decree is final and when a decree is made for mesne profits in that suit, it is only preliminary, because the final decree for mesne profits cannot be made unless the amount due is found upon further enquiry. Therefore, further proceedings have to be taken for ascertaining the amount due for mesne profits, before the claim for mesne profits can be completely disposed of. In such a suit, although one decree is made, it is partly preliminary and partly final. The final part of the decree can be executed apart from the preliminary part, and it falls within the provisions of Art. 182 of the Limitation Act. Time for execution of the decree for possession, therefore, runs at the latest from the date of the final decree of the appellate court. The judgment and order of the court below so far as it holds that the application for execution of the decree for possession is no barred by limitation must be set aside and we hold that part of the application must stand dismissed with costs."
(8) The learned Judges held that the decree holder will be entitled to proceed with the execution of that part of the decree relating to the award of mesne profits.
(9) for the reasons set out above, we agree with the courts below and Ramaswami, J, that the execution petition filed by the appellants, which was confined to the relief of possession, was barred by limitation. The appeal is dismissed with costs.
(10) Appeal dismissed.