G. Ramanujam, J.
1. Legal Representatives of the first defendant in O.S. No. 291 of 1952 on the file of the District Munsiff, Erode who were unsuccessful in both the Courts below are the appellants herein.
2. The respondent herein filed the said suit for specific performance of an agreement of reconveyance. One Mariappan, Pajagopalan and Angappan had sold the property covered by that suit to the first defendant under a sale deed dated 19th February, 1946. On 20th February, 1946, the vendee, the first defendant, had executed an agreement of reconveyance in favour of the vendors, Maria ppan and others. The vendors had executed a mortgage of the right of reconveyance to the vendee. One Kuppayammal, the mother of the first defendant had filed a suit O. S No. 290 of 1949against Mariappan the third defendant and obtained a decree. In execution of that decree the second defendant had attached the said right to obtain reconveyance. In pursuance of that attachment that right was brought to sale and purchased by the first defendant on 16th April, 1952- The sale was confirmed. Since the other two vendors, RajagopaIan and Angappan were not parties to the said suit O. S No. 290 of 19 9, the first defendant, as a result of the Court-auction-purchase could obtain only 1/3rd right in the reconveyance, belonging to Mariappan. The plaintiff had obtained an assignment of the reconveyance from Raja, gopalan and Angappan urder a deed Exhibit 4 dated 5th October, 1951. Similarly, under Exhibit A-5 dated 11th February,]952, the plaintiff obtained an assignment of the said right from the third defendant but this was after the attachment was effected in O.S. No. 290 of 1949 and hence it is ineffective. It is in these circumstances the plaintiff filed the suit O.S. No. 291 of 1952 for specific performance of the agreement of reconveyance in respect of the entire suit property in tie alternative respect of 2/3rd share belonging to Raja, gopalan and Angappe.n and for recover of possession.
3. In the said suit, defendants 3 and 4 re mained ex parte and it was resisted only by defendants 1 and 2. The defence taken by them was that the plaintiff is not entitled to obtain a reconveyance without redeeming the mortgage over the right of reconveyance by payirg the proportionate share of his assignors, Angappan and Rajagopalan and that the plaintiff is entitled to reconveyance of the shareof Angap pan and Rajagopalan only on payment of Prorata share of the reconveyance a mount.
4. The trial Court passed a decree directing the first defendant to execute a deed of reconveyance of the suit property in favour of himself are the plaintiff on the plaintiff depositing a sum of Rs. 1,450 into Court within a period of one month. On appeal, the lower appellate Court took the view that the right to get a reconveyance from Angappan and Rajagopalan stood extinguished and that, the plaintift is not in any evert entitled to a reconveyance without redeeming the mortgage over the right of reconveyance or paying the proportionate share of his assignors, Angappan and Rajagopalan In that view the lower appellate Court reversed the decree of the the trial Court and is missed the suit.
5. The matter was taken in Second Appeal No. 262 of Ig56 to this Court. In the second appeal the plaintiff had no objection for a decree being passed subject to the plaintiff paying his vendors share of the mortgage money and on his complying with such equitable terms and conditions as may be imposed by the Court. This Court by its judgment dated'13th November, 1958, set aside the decree and judgment of the lower appellate Court and restored the decree and judgment of the trial Court subject to the following terms:
1. The trial Court do ascertain the exact amount payable to the first defendant under the decree in O.S. No. 290 of 1949 and 710 of 1948 on the file of the Court of the District Munsif, Erode upto date and the plaintiff has to pay 2/3rd of the same to the first defendant.
2. In respect of the mortgage amount of Rs. 700 and interest accrued thereon at 12% per annum from the date of the mortgage viz., 30thMarch, 1946, the plaintiff shall pay 2/3rd to the first defendant.
3. The plaintiff if entitled to get credit of a sum of Rs. 483-5-4 being the 1/3rd of the sum of Rs. 1,450 deposited as the sale consideration for the right of conveyance.
4. The plaintiff is entitled to mesne profits from 10th February 1954, the date of deposit of Rs. 1,450 and the same will be ascertained by the trial Court under Order 20, Rule 12, Civil Procedure Code.
5. The amount due to the plaintiff by way of mesne profits and the sum of Rs. 483-54 which has to be given credit to the plain, tiff as the 1/3rd of the amount deposited will be set off against the amounts to be determined as ultimately payable by the plaintiff.
6. The trial Court will a pass a final decree after the amount? due under the above clauses were ascertained in favour of the party entitled.
6. After the amounts have in fact been ascertained as per the said decree of this Court, an application, I.A. No. 667 of 1973 was filed by the plaintiff for passing a final decree directing the first defendant's legal representatives, appellants 1 to 6 herein to execute a deed of reconveyance as regards the 2/3rd share of the suit property and put the plaintiff in joint possession of the same, or in the alternative, to divide the suit lands into three shares and allot two such shares to the plaintiff with past and future mesne profits from the date of the final decree.
7. The said application was opposed by all the appellants herein contending as follows: Since the plaintiff did not ask for the execution of conveyance and for possession within three years from the date of judgment and decree datedl3th November,1958 in Second Appeal No. 262 of 1956 the present application was barred. The right to get pint possession was also barred, and consequently the plaintiff was not entitled to mesne profits since the decree was not a preliminary decree. The said decree of the High Court dated 13th November, 1958, is a final and executable decree and not a preliminary decree. As the same was not executed within three years as provided in Article 182 of the Limitation Act, the decree cannot be executed in 1973 after a period of 12 years as provided in Section 48, Civil Procedure Code. Further, the decision of the High Court in C.R.P. No. 671 of 1965 which has concluded the rights of parties in relation to the decree for specific performance and the right to have a sale deed executed in his favour. Hence, it operates as judicatta to the plaintiff's application for passing a final decree.
8. On these rival contentions, the trial Court framed the following points for consideration : (1) Whether the decree granted in favour of the plaintiff for getting the sale deed in his favour has become barred as contended by the appellants as the plaintiff had not filed a petition for execution within three years from 13th November, 1958,the date of judgment in the second appeal in the High Court; and (2) What is the amount payable by the plaintiff to the respondents (appellants) as per Clauses 1 to 6 in the said decree 13th November, 1958, in S.A. No. 262 of 1956 of High Court, Madras. On the first point the trial Court held that the decree passed by the High Court is only a preliminary decree and, therefore, there is no question of limitation for filling an application for passing a final decree. On the second point the trial Court held that a sum of Rs. 1,639.90 is liable to be paid by the plaintiff to the respondents and in that view the plaintiff was directed to deposit the said sum of RS. 1,639.90 on or before 21st October, 1976. The plaintiff having deposited the amount on 13'th October, 1976, the trial Court passed a final decree directing the appellants herein to execute a sale deed in favour of the plaintiff as regards 2/3rd share of the suit property and to put the plaintiff in joint possession of the same along with the appellants within 2 months failing which the plaintiff will be at liberty to get the sale deed executed through Court. The plaintiff was also given liberty to move the Court for partition and separate possessior his 2/3rd share on the execution of tie sale deed.
9. The respondents (appellants) tool? the matter in appeal to the lower appellate Court mainly questioning the finding of the trial Court that the decree passed in the suit is a preliminary decree and therefore it is not barred by time. The quantification of the amount by the trial Court as payable by the plaintiff has not been questioned though a contention had been raised that the claim of the plaintiff relating to mesne profits was also barred by time. The lower appellate Court took the view that there is no merit in the contention that the decree passed by the trial Court as early a 16th January, 1954, which has been restored by the decree of the High Court in S.A. No. 262 of 1956 is a final decree capable of execution and as the plaintiff has not executed the said decree for specific performance within the time prescribed by law, the present application for passing a final decree and to have the sale deed executed is barred by time, and that in view of the direction to assess the quantum of mesne profits under Order 20, Rule 12, Civil Procedure Code, by the High Court it would itself clearly indicate that the claim for mesne profits cannot be said to be barred by time. The lower appellate Court therefore affirmed the order of the trial Court passing a final decree directing the appellants to execute the sale deed in pursuance of the decree for specific performance and fixing the mesne pro. fits, in this second appeal the appellants (respondents before the Courts below) have raised the only contention that the application for passing a final decree is barred by time a.' the decree of the trial Court dated 16th January, 1954, which had been restored by a decree of the High Court in S.A. No. 262 of 1956 is a final decree capable of execution and, therefore, it should have been executed within three years from the date of the High Court's judgment as provided in Article 182 of the Limitation Act, and that in any event the 12 year's time having elapsed since the date of the High Court's judgment, no execution is possible and its execution is barred by Section 48 of the Code of Civil Procedure. Therefore, the main question that comes up for consideration here is whether the decree passed by the trial Court which has been restored by the High Court in Second Appeal No. 262 of 1956 on 13th November, 1958, subject to certain conditions is a preliminary decree as contended by the plaintiff or whether it is a final decree as contended by the appellants.
10. The learned Counsel for the appellants would refer to the following observations of Anantanarayanan, CJ. when the same matter came before this Court in C. R. P. No. 671 of 1965 in support of his stand that the decree of the trial Court as regards specific performance is a final decree:
Admittedly the deposit of Rs. 1,458 by the plaintiff had Occurred even prior to the disposal of the second appeal. Consequently as far as this aspect is concerned, the restoration of the decree of the trial Court would appear to entitle the plaintiff to ask for the execution of the conveyance and to ask for possession forthwith from the date of the judgment in second appeal.
But the learned Chief Justice has subsequently observed:
I am not deciding one way or the other whether the judgment and decree in second appeal referred to should be construed as partly preliminary and partly final or as totally preliminary as contended by Mr. Mohan. Now lam deciding whether the decree for possession is now time-barred or otherwise.
11. It is not, therefore, possible to take the decision of Anantanarayana, CJ. as holding that the decree of the trial Court which has been restored by the High Court in S.A. No. 262 of 1956 is a final decree. That question has to be decided without reference to the said observations that the plaintiff is entitled to ask for the execution of the sale deed and for joint possession from the date of the decree in the second appeal.
12. A perusal of the decree in Section A. No. 262 of 1956 in a way indicates that the decree of the trial Court which has been restored by the High Court can only be a preliminary decree. The operative portion which is Clause (1) of the High Court's decree is as follows:
That the decree of the lower appellate Court be and hereby is set aside and that of the Court of the first instance be and hereby restored subject to the term mentioned in the following Clauses 2 and 3
Clauses 2 and 3 relate to the plaintiff's liability to pay his share of the decree amount in O.S. No. 290 of 1949 and O.S. No. 710 of 1948andhis liability to pay a portion of his share of the mortgage money payable on the mortgage, Exhibit B-2. Clauses 4 to 6 relate to the plaintiff's right to get mesne profits and the other a mounts which have to be given credit to him against his liability under Clauses 2 and 3. Clause 8 of the decree is as follows:
That the trial Court do pass a final decree after the amounts due under Clauses 2 to 6 supra were ascertained in favour of the party entitled.
Therefore, the decree proceeds on the basis that the trial court decree which has been restored by the High Court is a preliminary decree and the final decree has to be passed only after the amounts due by the plaintiff to the firs defendant had been determined. The expression 'subject to' used in Clause (1) of the decree would mean that the restoration of the trial Court's decree is conditional upon the observance of the conditions set out in Clauses 2 and 3. The expression 'subject to' has been construed as conditional upon by the Supreme Court in Balakrishna & Sons v. State of Madras : 2SCR736 .
13. The judgment of the High Court in S.A. No. 262 of 1956 also throws some light on this question. The Court refers to a memo filed by the first defendant/respondent in the appeal and the plaintiff having expressed no objection for a decree being passed embodying the terms set cut in the memo, of the first defendant. The Court observes:
The learned advocate for the appellant intimates that his client has no objection for a decree being given embodying the terms contained in paras. 1 and 2 of the memo, and that with reference to paragraph 3 the question of mesne profits should be gone into at the time of the passing of the final decree by the trial Court, treating the decree to be passed by this Court as a preliminary decree and for which position there is warrant in the decision in Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR(1923) Mad. 148 : 44 M.L.J. 107 : 17 L.W. 216 : A.I.R. 1923 Mad. 284.
The above observation also indicates that both the parties as also the Court proceeded on the basis that the decree of the High Court which restores the decree of the trial Court should be taken to be a preliminary decree and the rights of parties have to be worked out on that basis in the final decree.
14. The contention of the learned Counsel for the respondents is that apart from the intrinsic light thrown by the judgment and decree in S.A. 262 of 1956 as to the nature of the decree passed by the High Court, having regard to the fact that the trial Court's decree has been restored subject to certain conditions, unless me conditions are fulfilled the decree of the trial Court cannot be effective and enforceable, and it is only when all the conditions referred to in the High Court's decree are satisfied, the decree will become a final decree and executable. There is considerable force in the said submission of the learned Counsel. Under Clauses 2 and 3 of the High Court's decree the plaintiff has been made liable to pay certain additional amounts apart from the sale consideration of Rs, 1,450 deposited already before the trial Court. In this case the amounts payable by the plaintiff to the respondents under Clauses 2 and 3 of the decree came to be determined only in 1.4. No. 667 of 1973 out of which the present appeal arises. Therefore, it is only after determination of the amounts due by the plaintiff under Clauses 2 and 3 and a final decree is passed on that basis the plaintiff could ask for execution of the sale deed and not before. It may be that under the trial Court's decree as originally passed the plaintiff could ask for a sale deed treating the same as final, for the plaintiff's liability as per the trial Court's decree is only to deposit a sum of Rs. 1,450 and there was no further liability. But the said decree has been restored and modified by the decree of the High Court. The modification is that the decree of the trial Court directing the execution of the sale deed is made subject to the plaintiff paying certain additional amounts in addition to the deposit of sale consideration which has already been made. The decree of the High Court specifically says that the additional amount due by the plaintiff in addition to the sale consideration will have to be ascertained in the final decree proceedings. Therefore the plaintiff's right to get a Sale deed could not arise unless the conditions under which the decree has been restored are complied with. The restoration of the decree of the trial Court by this Court is not independent of the conditions set out in the other clauses of the decree.
15. The learned Counsel for the appellants however contends that a decree may be partly preliminary and partly final, and that the decree of the trial Court in this case should be taken to be partly preliminary and partly final. According to the learned Counsel, the portion of the decree providing for the execution of the sale deed on deposit of the amount is a final decree though the other portion of the decree directing the ascertainment of the amounts payable by the plaintiff to the defendants can be taken to be preliminary. It is true, in certain cases it is possible to construe a decree as partly preliminary and partly final. But in this case since the decree of the trial Court has been restored subject to the condition that the plaintiff's liability to pay additional amounts to the defendants is determined, the decree as modified by the High Court is only a preliminary decree.
16. The learned Counsel for the appellants places strong reliance on a decision of the Supreme Court in Sandhya Rani v. Sadka Rani : 2SCR839 in support of his general submission that a decree passed in a suit for specific performance can only be a final decree. In that case a contract of sale was to be completed by April, 1956. However, the sale 'was not completed even though the plaintiff called upon the defendant to com. plete the transaction. The plaintiff thereafter filed a suit and the suit was decreed on 30th April, 1962. Under the decree the plaintiff was required to deposit the balance of the consideration within 30 days of the date of the decree. However, she did not deposit the amount within that date. She asked for extension of time, and the extension of time sought for was given by the Court on condition that in the event of default of deposit, the suit would stand dismissed. The question arose as to whether the order extending the time for deposit on condition that in the event to default the Suit will stand dismissed is a preliminary decree or a final decree. The Supreme Court observed:
To assert that the decree made in a suit for specific performance of contract for sale of immovable property calling upon the purchaser to deposit the balance of consideration within the time stipulated in the decree with super-added condition that in the event of default the suit would stand dismissed, is a preliminary decree, is to ignore the relevant provisions of the Code of Civil Procedure which require in certain types of suits to pass preliminary decree. In such a suit when contented, each party would be accusing the opposite party of committing breach of contract. The right to ask for specific performance of contract would be adjudicated upon and in fact in this case it was a dudicated upon. The trial Court did call upon the defendant to execute the conveyance on receipt of consideration. Such a decree could never be said to be preliminary decree.
Based on the said judgment it is the submission of the learned Counsel that a decree calling upon the defendant to execute a conveyance on receipt of consideration could never be said to be a preliminary decree. As already stated, if the decree of the trial Court directing the execution of the sale deed on the plaintiff depositing the amount of consideration stood as it is, it cannot be construed to be a preliminary decree as per, the said decision of the Supreme Court. But in this case the decree of the trial Court has been restored by the High Court subject to the condition that the plaintiff's liability to pay additional amounts in addition to the sale consideration is to be ascertained and the final decree should be passed thereafter. Therefore, the said decision of the Supreme Court cannot apply to the facts of this case where the decree of the trial Court as restored and modified by the High Court is one which does not determine fully the amount to be deposited by the plaintiff for getting the sale deed executed by the defendants. As a matter of fact, the facts of this case will attract the principle laid down by the Supreme Court in a later decision in K. Kalpai'a Saraswalhi v. P.S.S. Somasundaram Chettiar : 2SCR293 . In that case 'A' had agreed to sell his house to 'B' in 1967 for 'a sum of Rs. 4 lakhs which was Subject to an equitable mortgage in favour of a Bank. The trial Court decreed to suit for specific performance directing 4 to deposit the mortgage amount within a specified time with interest and that failure to pay the amount would result in the suit being dismissed A did not deposit the mortgage amount within the prescribed time. B later the mortgage amount due to the Bank had been paid and an assignment of the mortgage had been obtained by A. A Division Bench of this Court in Saras-wutki v. Somasundaram Chettiar : (1977)2MLJ68 out of which the appeal before the Supreme Court arose while holding that the direction to make a deposit into Court within three months was valid, vacated the default clause, namely the dismissal of the Suit on or payment within the time. When the matter was taken up to the Supreme Court, the Supreme Court tools the view that having regard to Section 28 of the Specific Relief Act the proper course in such cases is to pass a decree for specific performance which would for all practical purposes be a preliminary decree and the suit would continue to and be under the control of the Court until appropriate motion was made by either party for passing a final decree. The learned Counsel for the respondent refers to this decision of the Supreme Court and submits that in all cases where time is granted for deposit of the sale consideration for getting a decree for specific performance, the decree should be taken to be a preliminary decree. As already pointed out in this case, though the trial Court gave a decree for specific performance on condition that the plaintiff deposits the amount of sale consideration within a specified time and that has been paid, the further amounts have to be pa id by the plaintiff in pursuance of the decree in S.A. No. 262 of 1956. Therefore, as something has to be done to ascertain the additional liability of the plaintiff, the decree can be taken to be only a preliminary decree, n Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR(1923) Mad. 148 : 44 M.L.J. 107 a Division Bench of this Court had held that where, in a suit for specific performance of a contract for sale of certain lands, the original Court passed a decree directing the defendant to execute a conveyance on the plaintiff paying the price within a certain time, the decree is in the nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders therein, including inappropriate cases the extension of the time limited by the decree. It is, therefore, not possible for me to accept the contention of the appellants that the decree of the trial Court directing execution of the sale deed should be taken to be a final decree and as such executable. Once the decree is treated to be a preliminary decree then on the analogy of partnership suits and suits for accounts. Articles 136 and 137 of the Limitation Act will not apply. In K.S.Doraiswami Nadar and Ors. v. Vinayaka Ratnaswami Nadar and ors. : (1969)1MLJ392 a Division Bench of this Court had held that an application for passing firal decree in a partition suit is not in execution an das such number of applications for passing a decree in parts are permissible and neither Article 136 nor Article 137 of the Limitation Act would apply to applications for passing final decrees, and that the position is so well established that it is hardly necessary to refer to any authority. Even otherwise, on the wording of Article 136 of the Limitation Act the period of limitation will begin to run only when the decree becomes enforceable. As it has a her by been held that the decree is only preliminary and not executable straightaway, the application for passings final decree is not barred. It is well-established that there is no time-limit for filing an application for passing a final decree. An application for passing a final decree is not an application in execution and the question of execution will arise only if the decree is final and executable. In this view of the matter, I am inclined to agree with the conclusion arrived at by both, the courts below.
17. The result is the second appeal fails and is dismissed. There will, however, be no order as to costs.