Krishnan Pandalai, J - (1.)C.M.S.A. No. 156 of 1930.--The appellant is the decree-holder on a mortgage in favour of his deceased mother Mangalathammal and himself in O.S. No. 275 of 1918 in which a preliminary decree was passed on 7 December, 1918, by the District Munsif, from which an appeal was taken to the District Judge, which was dismissed on 30 September, 1920; and from which a second appeal was taken to this Court which was dismissed on 6 April, 1923. Mangalathammal having died pending the second appeal, the appellant was added as her legal representative. Soon after the preliminary decree by the District Munsif, the then decree-holder Mangalathammal obtained a final decree on 28 April, 1919. After the decision in second appeal, the appellant, his mother having died in the meanwhile, on 5 March, 1926, applied to the District Munsif for a final decree in pursuance of the decree of the second appellate Court. This was granted by him on 21 September, 1926. On appeal by the judgment-debtor, the then District Judge on 28 September, 1927, held that the appellant was not entitled to apply for a final decree a second time and that his only course was to apply to amend the old final decree or ask for a review of it. He however on a benevolent consideration which as it has turned out has prevented what would have otherwise been a grave miscarriage of justice, allowed the petition of 5 March, 1926, to be pending and sent it back to the District Munsif. The District Munsif considered that he was substantially carrying out the direction of the District Judge by allowing the appellant to treat his petition as one for execution of the old final decree and to incorporate in it the information which would bring it into conformity with the High Court's decree; in short, he tried to save the decree-holder by treating his petition as one for execution and one for amendment both rolled into one and he gave the appellant relief by an order to execute the old final decree as so amended. The judgment-debtor again appealed. Another learned District Judge on 6 December, 1928, set aside the above-mentioned second order of the District Munsif because according to him the District Munsif was not authorised to regard the petition of 5 March, 1926, as one for execution. He therefore set aside that order and sent the case back for a second time but this time without giving any indication of what would be the proper way to deal with the appellant's grievance and contenting himself with saying that the matter was to be disposed of according to law. For the third time another District Munsif enquired into the appellant's petition of 5th March, 1926, and this time he made sure that no more fault should be found with him and dismissed that petition on 17 January, 1929, on the ground that an application for a fresh final decree was illegal. The appellant appealed in his turn to the learned District Judge, who, on 17 March, 1930, dismissed the appeal. The present second appeal is from that dismissal.
(2.)I have mentioned the dates in the above narration because, while these orders were being passed by the Lower Courts, the Privy Council had decided that the appellant's petition of 5 March, 1926, was entirely legitimate and was the only petition he could file. Far from it being the case that an application for a second final decree is illegal, the true doctrine is that the right to ask for a final decree arises where the preliminary decree has been under appeal, from the date of the judgment in appeal. In cases where there has been a final decree in pursuance of the preliminary decree of the Lower Court pending the appeal, that final decree is valid and binding to the extent but only to the extent to which it is not altered by the appellate decree, and a decree of the appellate Court confirming after judicial consideration the preliminary decree of a Lower Court is for this purpose one altering it. The consequence is that where there is, as in this case, a final decree obtained in pursuance of the Lower Court's preliminary decree and that preliminary decree is taken up in appeal and the appellate Court on a judicial determination confirms the preliminary decree and dismisses the appeal, the decree-holder has the right, which he may exercise within three years from the date of the decree in final appeal, to obtain a final decree in conformity with that appellate decision or, if that is the proper way of expressing it, amending the old final decree so as to bring it into such conformity.
(3.)In 1917 in Gajadhar Singh V/s. Kishan Jiwan Lal (1917) I.L.R. 39 All. 641 (F.B.) it was held that: In a suit for sale on a mortgage, if an appeal has been preferred from the preliminary decree, the decree which is to be made absolute is the decree of the final Court of appeal. In such a case, therefore, limitation for an application for a decree absolute runs, not from the expiry of the term fixed for payment by the original decree, but from the date of the decree of the final Court of appeal.