Venkatarama Ayyar, J. -
(1.) This is an appeal under Clause 15, Letters Patent against the judgment or Panchapakesa Ayyar J. in C. M. A. No. 328 of 1948. The judgment-debtor is the appellant. The respondent filed O. S. No. 33 of 1929 in the District Mun-siff's Court, Erode, for partition of certain properties held in co-ownership. There were a number of defendants in that suit. On 3-10-1929 a preliminary decree was passed. Clause 1 of the decree declared the right of the plaintiff to a 5/6 share in the properties and directed a division thereof. Under Clause 2, the plaintiff was declared entitled to mesne profits from 31-10-1927 till date' of delivery of possession at the rate of 7 1/2 pothies of paddy or their value, Rs. 200, per annum. The third clause provided that the plaintiff was entitled to recover the mesne profits subject to the condition that he paid the court-fees payable on the amount of the mesne profits granted under the decree within one week from that date and that in default of payment of the court-fee the plaintiff should not obtain a copy of the decree and execute the same against the defendants. Thus, the decree was a preliminary decree with reference to division of the properties and a final executable decree as regards the mesne profits. There was an appeal against the preliminary decree and that was disposed of on 12-11-1935. There was a second appeal to this court and that was disposed of on 6-12-1939. Defendant 10 who is the appellant before us was not a party to these appeals. Meantime, on 152- 1935, the final decree was passed, and the plaintiff obtained possession through Court on 20-6-1935. On 12-2-1945, he filed E. P. No. 292 of 1945 for the recovery of mesne profits under the decree from the 10th defendant. This application was resisted on two grounds. She contended that as the execution application was presented more than 12 years after the date of the decree it was barred by limitation. She also contended that as the plaintiff had not paid the court-fee within a week as provided in Clause 3 of the decree he was not entitled to execute the same. Both these contentions were overruled by the Courts below and execution was directed to issue. There was an appeal by defendant 10 to this Court C. M. A. No. 328 of 1948 and the judgments of the Courts below were affirmed oy Panchapakesa Ayyar J. Against this judgment the present appeal has been preferred.
(2.) Mr. B.V. Viswanatha Ayyar has pressed before us both the contentions as to the bar of limitation and the non-executability of the decree by reason of the failure to pay the court-fees. On the question of limitation he contends that so far as mesne profits were concerned, there was a final executable decree on 3-10-1929 and that therefore the present application filed on 12-2-1945 was barred under S. 48, Civil P. C. The answer of the respondent is that there was an appeal and a second appeal against the decree dated 3-10-1929, the second appeal was finally disposed of on 6-12-1939, the period, of limitation begins to run only from that date, and the present execution application is accordingly in time. Mr. Viswanatha Aiyar replies that defendant 10 was not a party to the appeals and that as against her there was an executable decree on 3-10-1929 and that the present application presented more than 12 years from that date is barred by limitation under Section 48, Civil P. C.
(3.) The law is well settled that when a decree is taken in appeal to a higher Court the decree passed in appeal supersedes that of the Court below and becomes the decree in the suit itself and that thereafter that is the only decree which is capable of execution and that the period of limitation for execution would run from the date of that decree. In --'Krishtama Chariar v. Mangammal', 26 Mad 91 (FB) (A), the question arose how far this doctrine would be applicable in a case where the appeal was in respect of a portion of the subject matter of the suit. The contention that was urged was that as regards the un-appealed portion there was no impediment to execution and therefore as to that limitation should be reckoned from the date of the decree of the first Court, and that as that portion was not the subject matter of the appeal the period of limitation should not be calculated from the date of the decree of the appellate Court. This contention was rejected by this Court. Bhashyam Ayyangar J. stated the principle applicable to the case in these terms:
"In my opinion, this is sound from a juridical point of view. When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that a matter is litigated both in the Court of first instance and again, though only in part in the Court of appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of appeal. There cannot be two final decrees in such a suit, one by the Court of first instance and the other by the Court of appeal." The principle laid down in this decision has ever since been uniformly followed and must be taken as firmly established. The argument of Mr. Viswanatha Aiyar is that this decision is not applicable to cases where the decree is sought to be executed against persons who were not parties to the appeal, and that it should be limited to cases where the parties against whom execution is sought were parties to the appeal. The judgment of Panchapakesa Ayyar J. was based on a decision of a Bench of this Court in --'Nacharamnal v. Veerappa Chettiar', AIR 1946 Mad 231 (B), where it was held that where there was a second appeal and the decree was one of dismissal the period of limitation under Section 48, Civil P. C. should be calculated from the date of the decree in second appeal and not from the date of the decree of the trial Court. Mr, Viswanatha Ai'yar contends that in that case the execution was sought against persons who were parties to the second appeal, and therefore the point now under consideration did not arise for determination. That must be conceded. The question, therefore, to be determined is whether the decision in -- '26 Mad-91 (FB) (A), becomes inapplicable in cases where the decree is sought to be executed against persons not parties to the appeal. On principle, it is difficult to see why it should be so. If the true juristic position is that the decree in appeal supersedes the decree of the trial Court and becomes the decree in the action, it should make no difference whether the person against whom execution is sought is a party to the appeal or not any more than whether the appeal related to the entire subject matter of the suit or only to a- part thereof. In either case, on the principle that there can be only one decree in a suit it must be held that the only decree which is capable of execution is the decree passed in appeal. The decision of the Privy Council in --'Nagendranath v. Sureshchandra', AIR 1932 PC 165 (C), would appear to conclude the matter. There, certain co-sharers executed a mortgage in favour of some of the co-sharers. One' of the mortgagee co-sharers Madaamohan filed a suit to enforce the mortgage against all the cosharers and also claimed that he had acquired the rights of the other comortgagees. The trial Court held that Madanmohan had not acquired the rights of his co-mortgagees and granted the usual mortgage decree. Against that judgment, there was an appeal only by Madanmohan, and the scope of that appeal was his claim, against his comortgagees. The judgment-debtors were not parties to this appeal. The appellate Court confirmed the decree of the trial Court on 24-81922. The other co-mortgagees, filed an application for execution on, 3-10-1923 and that was more than three years from the date of the original decree which was on 24-6-1920 but within three years of the appellate decree. The contention of the judgment-debtors was that the execution of the decree was barred by limitation as against them as they were not parties to the appeal preferred by Madanmohan and that therefore as against them limitation ran from the date of the decree of the trial Court. The contention was repelled by the Privy Council and it was held that the limitation for execution of the decree ran from the date of the appellate decree, notwithstanding the fact that the judgment-debtors were not parties to that appeal. After referring to the difference of opinion in the Indian Courts on theNjuestion, their Lordships came to the conclusion that the words of the Statute, "where there has been an appeal" should be construed as including any appeal presented, and that the Article would apply notwithstanding the fact that the appeal did not comprise the whole subject matter of the suit or the judgment-debtors were not parties to it. Their Lordships observe as follows : "There is in their Lordships' opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say." In view of this clear pronouncement, it must be held that even though the appellant was not a party to the appeals, limitation even as against her ran only from the date of the decree in second appeal which was on 6-12-1939: and that therefore the execution petition is within time. In this view, it is unnecessary to refer to decisions under the Madras Agriculturists' Relief Act in which this Court has he!d that even with reference to parties who are not parties to the appeal the only subsisting decree liable to be scaled down was the decree passed un appeal. Vide the judgment of Wadsworth J. in -- 'Palani Mudali v. Athiappa Goundan', AIR 1943 Mad 160 (D) and of Wadsworth and Patanjali Sastri JJ. in -- 'Moidin Bacha Row- i ther v. Chidambaram Filial', AIR 1945 Mad 86 (E).;