McDonell and Beverley, JJ.
1. In this ease a decree for arrears of rent was passed against the appellant on the 27th December 1882, and coupled with it an order that if the arrears so decreed were not paid within 15 days from the date of the decree, the appellant should be liable to ejectment from his holding. Against this decree the appellant preferred an appeal which was dismissed on the 17th of July 1883, and within 15 days from that date the appellant paid into court the amount of the arrears decreed; no execution of the original decree having been taken out in the meantime.
2. The sole question that arises now is whether the appellant, not having paid the arrears within 15 days from the date of the original decree, is still liable to ejectment under the terms of that decree, notwithstanding the fact that the arrears were paid within 15 days from the date of the decree in appeal.
3. Both the lower Courts have found against the appellant on this point; but after taking time to consider the question, we are of opinion that this finding ought not to be upheld.
4. In arriving at his decision the Munsif has relied on the case of Puresh Nath Ghose v. Kristo Lal Dutt 23 W.R. 50 but that decision, we think, does not conclude the point in question, and we are hot aware of any other direct authority in the matter.
5. In the case cited there would seem to have been no appeal and consequently no appellate decree. According to the judgment, 'the Munsif had attempted to modify his decree in review; but it is now finally held that the order of the Munsif granting the review was illegal, and it is finally declared that his proceedings in that respect were void. The original decree, therefore, as made by the Munsif stands, and that is the decree which is now to be carried out.' It is clear, therefore, that that decision has no applicability to the circumstances of the present case in which the question is whether the appellant is liable to ejectment notwithstanding that he paid up the arrears within 15 days from the date of the appellate decree.
6. We have been unable to find any express authority on the precise point now before us, but we think that there is direct authority, not only in reported cases, but in the Code of Civil Procedure itself, for holding that the appellate decree, even where the appeal is merely dismissed, supersedes the original decree, and is the only decree that can be executed if execution has not already been had upon the original decree.
7. In the Full Bench case of Luchman Persad Singh v. Kishen Persad Singh I.L.R. 8 Cal. 218 it was decided that even though the appellate decree did nothing more than confirm the decree of the lower Court, it was the paramount decision in the case, and that execution should be taken out of that appellate decree and not of the decree which it confirmed; and the question of limitation which was in issue in that case was decided upon this ground.
8. In the case of Kristo Kinkur Roy v. Raja Baroda Kant Roy 14 Moore's I.A. 465 : 10 B.L.R. 101 decided by the Privy Council in 1872, the following observations occur: 'The state of the Indian authorities upon the general question seems to be this. In the case before us the High Court obviously proceeded upon the principle that a simple decree of affirmance did not so incorporate the mandatory part of the original decree as to make for all purposes the decree of the Appellate Court the sole decree to be executed. And this ruling appears to have been followed in the case of Chowdhry Wahed Ali v. Mullick Inayet Ali 6 B.L.R. 52 in which it was ruled that in order to make the decree of the Appellate Court the final decree in the suit for all the purposes of execution, it was necessary that it should have decreed a material modification of the original decree. The rule so expressed seems open to the objection of vagueness. The Full Bench of the High Court of Bengal, however, in Ram Charan Bysack v. Lakhi Kant Bunnik 7 B.L.R. 704 : 16 W.R.F.B. 1 has ruled that whether the decree of the lower Court is reversed or modified or affirmed, the decree passed by the Appellate Court is the final decree in the suit; and m the words of Mr. Justice Mitter as such the only decree which is capable of being enforced by execution'. And that is in accordance with the Madras decision in Aruna Chella Thudayan v. Veludayan 4 Mad. H.C. 215. Chief Justice Scotland'S words are : 'Whether that decree be in affirmance or reversal or modification of the decree appealed from, it becomes the final decree in the suit, and therefore the decree enforceable by execution.'
9. Section 579 of the Code provides that the decree of the Appellate Court 'shall specify clearly the relief granted or other determination of the appeal,' and 'shall also state the amount of costs incurred in the appeal and by what parties and in what proportions such costs, and the costs in the suit, are to be paid.' We think that these words clearly show that the appellate decree is intended to supersede the original decree. Then Section 583 goes on to say: 'When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this Chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal according to the rules hereinbefore prescribed for the execution, of decrees in suits.'
10. It seems to us clear, therefore, that the decree, and the only decree, of which execution could be taken out was the appellate decree. That decree must be presumed to have incorporated the terms of the original decree, and if the arrears were paid within 15 days from its date the appellant was not liable to be ejected.
11. The words of Section 52 of Bengal Act VIII of 1869 are: 'In all cases of such 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 suit, be paid into Court within 15 days from the date of the decree, execution shall be stayed.'
12. It was of course open to the decree-holder to take out execution of the original decree at any time before it was superseded by the decree in appeal. Not having done so, we are unable to see that he has any real grievance because the terms of the appellate decree have been complied with by the appellant.
13. The order of the lower Appellate Court is accordingly reversed and the appellant is declared to be not liable to ejectment. The appellant will also have his costs in all the Courts.