1. This appeal arises out of an application for cancellation of a mokurari pattah, under which the defendant holds, in terms of a decree passed by the Deputy Collector of Hazaribagh on the 22nd of July 1892. The decree runs as follows: 'That a decree be passed for the sum of Rs. 4,973-15 as., besides the costs of the Court. Should the defendants fail to pay the amount of decree within fifteen days the mokurari pattah shall be cancelled. In case the decretal amount be not paid within fifteen days, interest shall be charged at the rate of Rs. 6 per cent. per annum.' This decree was made according to the provisions of Section 88 of Bengal Act I of 1879, which is as follows: 'Any person desiring to eject a rayat, or to cancel a lease on account of non-payment of arrears of rent, may sue for such ejectment or cancelment and for recovery of the arrear in the same action, or may adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears in a suit for such ejectment or cancelment. In all cases of suits for the ejectment of a rayat, or the cancelment of a lease, the decree shall specify the amount of the arrear : and if such amount, together with interest and costs of the suit, be paid into Court within fifteen days from the date of the decree, execution shall be stayed.'
2. The decree of the Deputy Collector of Hazaribagh was appealed to the High Court; and this Court, on the 21st of June 1893, dismissed the appeal confirming thereby the decree of the Court of First Instance, with costs It would appear that pending the appeal to this Court, the decree-holder did not take out execution of the decree of the Court of First Instance; and the decree of this Court having been pronounced on the 21st June 1893, the defendant, within fifteen days from that date, paid into the hands of the decree-holder's pleader the amount covered by the decree. Notwithstanding this, on the 1st August 1893, the decree-holder presented a petition for the purpose of giving effect to the decree of the Court of First Instance and for ejectment of the defendant from the property covered by the mokurari pattah, upon the ground that that decree had not been complied with, because, within fifteen days from the date thereof, the judgment-debtor did not deposit in Court the amount covered thereby. The lower Court has disallowed this application following the decision of this Court in the case of Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13, in which it was laid down, with reference to the provisions of Section 52 of Bengal Act VIII of 1869, which contained words almost similar to those that are to be found in Section 88 of Bengal Act I of 1879, that the decree of the Appellate Court is the only decree of which execution could be taken out, and that that decree must be presumed to have incorporated the terms of the original decree, and that if the arrears wore paid within fifteen days from the date of the decree of the Appellate Court, this tenant was not liable to be ejected.
3. On appeal to this Court, on behalf of the decree-holder, it has been contended by the learned Counsel that the principle laid down in the case relied upon by the lower Court is not correct, and that in determining the question whether the decree that was pronounced in the suit has been complied with by the defendant, we must look at the decree of the Court of First Instance, and of that Court only, and not to the decree of the Appellate Court, because that decree was but in affirmance of, and not of reversal or modification of, the decree of the Court of First Instance; and it was contended that the defendant, not having paid in the amount of rent decreed in the suit within fifteen days from the date when the Court of First Instance made its decree, we ought to hold that the decree-holder is entitled to obtain the relief which he asked for, namely, ejectment of the defendant. We are, however, unable to accept this contention as correct. It has been held in various cases, both in this Court and in the Privy Council, that, when a decree of the Court of First Instance is appealed from to a higher Court, the decree of that Court, whether it be one of affirmance or reversal of the decree of the Court of First Instance, should be taken to be the final decree in the case, and the only decree which is capable of execution. A Divisional Bench of this Court in the case of Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13, in following this principle have held that although the decree of the Appellate Court did not in so many words specify that the defendant should have fifteen days' time from the date of its decree, still it must be presumed to have incorporated the terms of the original decree; and in the language of Mr. Justice West in the case of Daulat v. Bhukandas Manekchand I.L.R. 11 Bom. 172 it must be supposed as if 'it drew up the decree of the, lower Court and gave its existence, as if made on the day upon which it was thus adopted.' We find that the principle laid down in the case of Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13, has been adopted in the case of Daulat v. Bhukandas Manekchand I.L.R. 11 Bom. 172, to which I have just referred, and in the case of Rupchand v. Shams-ul-Jehan I.L.R. 11 All. 346. We think we may well follow this principle and the cases which have given effect to it; and we think that, having regard to what has already been laid down in other cases, namely, that the decree of the Appellate Court should be taken to be the final decree and the only decree capable of execution, we ought in a case, where the decree of the original Court was not executed pending the appeal to the higher Court, to read the latter part of Section 88 thus: 'and if such amount, together with interest and costs of the suit, be paid into Court within fifteen days from the date of the final decree, execution shall be stayed.' Reading the section in this wise, we think we would be giving effect to the true intention of the law; and in this view of the matter, we hold that the Court below was right in disallowing the application of the decree-holder. The learned Counsel did not raise before us any other point; and the point that he discussed before us being given against him, the result is that this appeal is dismissed with costs.