JUDGMENT

(Delivered by Suba Rao, J.)

This is an appeal against the order of the Court of the Subordinate Judge of Madura in E.P No. 76 of 1946. The facts relevant for appreciating the questions raised may be briefly narrated. Thothan Chetti is the father of Vairavan Chetti. Shanmugam Chetti is the son of Vairavan Chetti. Vairavan Chetti executed a mortgage in favour of the plaintiff in September 1921 for himself and as guardian of his son, the 2nd defendant, for a sum of Rs. 50,000. The mortgagee instituted O. S. No. 114 of 1925 against Vairavan Chetti and his son and obtained a preliminary mortgage decree against the share of Vairavan Chetti on: 16-1-1930. Final decree was passed on 30-9-1930. The suit against his son, the 2nd defendant, was dismissed. There were appeal and cross appeal to the High Court against that decree being A.S Nos. 406 and 467 of 1930. On 14-8-1934 the High Court confirmed the mortgage decree against the 1st defendant and passed a simple money decree against the 2nd defendant to the extent of his share in the family properties. Meanwhile, in execution of the mortgage decree the share of the 1st defendant was brought to sale, and for the balance of the amount due a personal decree was obtained against him on 15-11-1932. An appeal was filed to the High Court against the personal decree, being C.M.A No. 66 of 1933. That appeal also was heard along with the appeals against the preliminary decree and was dismissed on 14th August 1934. Various applications were filed in execution of both the money decree and the mortgage decree. After giving credit to the amounts realised, the decree-holder filed E.P No. 76 of 1946 against the 1st defendant for the balance of the amount due to him. On 13-12-1944 the 1st defendant filed an application for relief under S. 14 of the Madras Agriculturists Relief Act, and the learned Subordinate Judge, by an order dated 2nd September 1946, gave the relief. The appeal against that order is C.M.A No. 644 of 1946, which we have dismissed* In E.P No. 76 of 1946 the learned Judge directed the decree-holder to file a memo of calculation to which the judgment debtor raised various objections. He also filed several memos on different basis to substantiate his objections. After hearing the objections and expressing his views on the same, the learned Judge directed the decree-holder to file a fresh memo of calculation. He filed a memo on 2-9-1946 claiming Rs. 30,005-14-0 as on 2-9-1946 plus costs of execution. On 8-1-1947 he heard arguments on the question of limitation. Having held that the application was not barred by limitation he accepted the memo filed by the decree-holder and fixed the amount payable to him at Rs. 30,005-14-0. By an order dated 6-3-1947 E.P No. 76 of 1947 was amended and the ascertained figure was substituted. The 1st defendant preferred the above appeal against that order.

The learned Counsel for the appellant in an exhaustive and careful argument contended that E.P No. 76 of 1946 was barred by limitation. He Contended that the personal decree against the 1st defendant was dated 15-11-1932 and therefore E.P No. 76 of 1946, which was filed on 4-3-1946, is clearly barred under S. 48 Civil Procedure Code. It may be mentioned at the outset that this point was not pressed before the learned Subordinate Judge. But as it raises a question of law based on facts in regard to which there is no dispute, we allowed the learned Counsel to raise that plea for the first time before us. His argument as finally elaborated may be specified under four subheads. (1) The personal decree against the 1st defendant was made on 15-11-1932. An incompetent appeal was filed against that decree being C.M.A No. 66 of 1933. That was not a regular appeal, but was filed as a miscellaneous appeal as if against an order, without full court-fee being paid. As no regular appeal was filed the executable personal decree for the purpose of S. 48 C.P.C, was the personal decree passed on 15-11-1932. (2) The order passed by the High Court dismissing the appeal was not a decree within the meaning of S. 2 2) C.P.C as it is not a decree adjudicating the rights of parties in a regular appeal. (3) As the decree was amended under S. 14 of the Madras Agriculturists Relief Act, the rights of parties thereafter are now governed by the amended decree. The execution application filed on the basis of the amended decree was not maintainable. The execution application should not have been amended after twelve years. In support of his contentions the learned Counsel for the appellant cited a long catena of cases. Most of the cases cited deal with principles well settled. We should have thought that the discussion of case-law would be unnecessary. But in view of the persistence with which the cases were pressed on us and to respect the advocacy of the learned Counsel we shall proceed to consider them in some detail.

Before we deal with the cases, the relevant provision of S. 48 C.P.C may be read:

“48(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from—

(a) the date of the decree sought to be executed. …”

Under this section the upper limit for the execution of the decree is fixed at 12 years from the date of the decree. This section corresponds with the 3rd and 4th parts of S. 230 of the Code of 1882. The relevant provisions of that section are as follows:

“Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted after the expiration of the 12 years from any of the following dates namely,

(a) the date of the degree sought to be enforced or of the decree, if any, on appeal affirming the same;

(b)…..”

The words “or of the decree if any on appeal affirming the same” have been omitted in the new section as they are not only redundant but also limit the operation of those words only to an appeal affirming the decree of the Court below. There is no particular reason why the decree in an appeal allowing or modifying the decree of the lower Court should be on a different position. The omission of the words removes an ambiguity. Under” the present section the terminus acquo for the purpose of S. 48 would be the decree of the appellate Court irrespective of the manner of the relief given by the appeal decree. This is on the well established principle that the decree of the first Court merges in the appellate decree.

The first case cited before us is that of the Judicial Committee in Khulna Lcan Co. Ltd., v. Jnanendra Nath Bose (1). The mortgage decree in that case directed that the mortgaged properties should be sold and if the proceeds of the sale were insufficient the balance should be realised from other properties and the persons of the judgment-debtors. The application was filed more than 12 years from the date of the decree. It was argued that the application was filed within twelve years after the mortgaged properties were sold and, therefore, it was not hit by S. 48 C.P.C But it was held that the application, having been filed more than 12 years after the date of the decree, was not executable in view of S. 48 C.P.C In Sahu Nandlal v. Sahu Dharma Kirti the facts are, the trial Court passed a decree on the basis of an award from which no appeal was allowed by law. A so-called appeal was filed to the High Court, but was dismissed on the ground that no appeal lay. An attemot was made to compute the periods of limitation prescribed under S. 48 C.P.C from the date of the order of the High Court dismissing the appeal. The learned Judges held that the said order was not a decree affirming the decree of the trial Court and therefore there was no appeal decree in which the decree of the trial Court could merge. The principle underlying this decision is intelligible. As no appeal lay at all to the High Court, the dismissal of the incompetent appeal was held by the learned Judges not to be a decree within the meaning of the Act. In Thandavatnurthi v. Durgamna(2) an application was put in after 12 years of the decree for amendment of the execution petition by adding a prayer of attachment and sale of immoveable properties of the judgment-debtors. The application was amended without notice to the judgment-debtors. When the properties were attached the judgment-debtors objected to the attachment on the ground that by reason of the amendrqent the decree-holder was allowed to evade the provisions of S. 48 C.P.C The learned Judges pointed out that inappropriate circumstances and for adequate reasons an application filed before 12 years could be amended after the expiry of the 12 years and if so amended, S. 48 C.P.C had no application. But in that case they agreed with the Court below that it was not a fit case for amendment. This case was relied upon in support of the proposition that an application should not be amended after the expiry of the 12 years. But a perusal of the judgment shows that the learned Judges clearly expressed the contrary view. Moidin Kutti v. Subrammia Aiyar(3) is a decision under Art. 182(2) Limitation Act. Though it does not arise under S. 48 C.P.C this case was pressed into service by analogy. Under Art. 182(2) of the Limitation Act the period of limitation would run from the date of the final decree or order of the appellate Court or the withdrawal of the appeal. In construing the Article the learned Judge held that an appeal against an order cancelling the order recording satisfation of a decree is not a final decree passed in appeal within the meaning of that Article. It is an obvious case, as it is impossible to hold that an order in such an appeal is the final decree of the appellate Court. In Ramchandra Rao v. Parasw ramayya(4) the Full Bench decided that the period of 12 years laid down by S. 48 C.P.C should be computed from the original and not the amended decree. The proposition laid down by the Full Bench was not questioned by the other side. Oorakkarai Seetharama Chettiar v. Sheik Abdul Rahiman Sahib(5) is another case on the interpretation of Art. 182(2) of the Limitation Act. The learned Judge held that an appeal against an order refusing to record satisfaction of a decree would not affect the running of limitation. The reason of the rule was that the order in appeal did not affect the decree in any way as it continued to remain valid and without modification. In Kayamnbu Pillai, In re(6) the question was whether an order dismissing the appeal for non-compliance with the order requiring security for costs and dismissing the appeal for non-payment of the required court-fee were decrees within the meaning of the definition in S. 2(2) of the Code. The Full Bench held that such orders were not decrees within the meaning of S. 2(2) of the Civil Procedure Code as they did not embody final expression of adjudication upon any right claimed or defence set up. In Shanmugam, In re Mr. Justice Happell held that a regular appeal should be filed against a personal decree after paying ad valorem court-fee. In Nacharammal v. Veerappa Chettiar a Bench of this Court held that the decree to be executed is that of the appellate decree of final jurisdiction where there has been an appeal and the period of 12 years under S. 48 has to be computed from the date of such appellate decree. In Lakshminarasingarao v. Balasubramaniam in a partition suit a preliminary decree was passed giving the plaintiffs some immediate executable reliefs. Subsequently a final decree was passed. For the relief given in the preliminary decree an E.P was filed more than 12 years after the date of the preliminary decree, but within 12 years period from the final decree. The learned Judge held that the execution application was barred as the criterion date for computing limitation was the date on which the decree became operative. In Bhawanipore Banking Corporation v. Gouri Sarma the Supreme Court gave an authoritative interpretation of Art. 182(2) Limitation Act. In that case an application in a suit on a mortgage under S. 36 of the Bengal Money Lenders Act was dismissed for default. An application was taken out under O. 9. R. 9, for setting aside that order and that was dismissed. An appeal against that order was also dismissed. When it was sought to be argued that the limitation would start not from the date of the final mortgage decree but from the date of the order in the aforesaid appeal, the learned Judges pointed out that the expression “where there has been an appeal” in the third column must be read with the words in column 1 of Art. 182(2), namely “for the execution of a decree or order of any civil Court.” So construed, they held that the words “where there has been an appeal” would not cover an appeal from an order which was passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution. The Allahabad High Court in Kunwar Bahadur Singh v. Sheo Shankar , expressed the same view, namely, that an appeal under Art. 182(2) means an appeal from the decree sought to be executed and no other appeal.

From a consideration of the aforesaid decisions the following principles may be gathered:

(1) Under S. 48 C.P.C the period of 12 years should be computed from the date of the appellate decree as the original decree would merge in that of the appellate Court.

(2) The words “where there has been an appeal” in Art. 182(2) of the Limitation Act cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree in execution. If that is so, in the case of Art. 182(2) ex hypothesi such an order in appeal cannot be taken as a starting point for computing the period of 12 years under S. 48 C.P.C

(3) The order of the appellate Court must be a decree within the meaning of S. 2, Cl. (2) of the C.P.C It will be a decree only if it embodies a formal expression of an adjudication, determining the rights of the parties with regard to all or any of the matters in controversy in the suit.

(4) The period of 12 years under S. 48 would be computed from the date of the decree and not from the date when that decree is amended.

(5) An execution application filed within 12 years from the date of the decree can be amended in proper cases.

(6) A regular appeal lies against the personal decree passed in a mortgage suit and in such an appeal ad valorem court-fee will have to be paid.

(7) For the purpose of S. 48 C.P.C an order dismissing an incompetent appeal cannot give a fresh starting point.

On the basis of the aforesaid principles all the contentions of the learned Counsel for the appellant will have to be negatived. The first two contentions of the learned Counsel are based upon misapprehension of facts. As aforesaid the preliminary decree in O.S No. 114 of 1925 was passed on 16-1-1930. The personal decree against the 1st defendant was made on 15-11-1932. A.S Nos. 406 and 467 of 1930 were filed against the preliminary mortgage decree. C.M.A No. 66 of 1933 was filed against the personal decree. The appeals as well as the C.M.A were heard by Ramesam and Stone, JJ. and they were disposed of on 14th August 1934. That C.M.A was filed by the 1st defendant himself. Neither the respondent nor the Court raised the objection that the court-fee paid was insufficient. The appeal was heard on the merits and the learned Judges dismissed the appeal with costs confirming the personal decree made by the Subordinate Court. The learned Counsel contended that C.M.A No. 66 of 1933 was an incompetent appeal and the fact that the High Court decided the case on the merits will not convert an incompetent appeal into a competent one. We cannot hold that the appeal was an incompetent appeal. The appeal was filed against the personal decree made in the suit. The fact that it was called a “C.M.A” is not decisive of the question to be decided. Nor the fact that the appellant treated the decree as an order is conclusive between the parties. The fact remains that an appeal was filed against the personal decree. If the respondent had taken the plea the Court perhaps would have insisted upon additional court-fee to be paid. The fact that an appeal was disposed of on insufficient court-fee would not make the decision made therein one passed without jurisdiction. So far as the decision in that appeal was concerned, it is binding on the parties, and as it finally adjudicated the rights between the parties, it would certainly be a decree within the meaning of S. 2(2) C.P.C The learned Counsel then pressed on us the same point from a different angle. He argued that the order of the High Court in C.M.A No. 66 of 1933 is not a decree as it was not made in a regular appeal under S. 96 C.P.C, or in an appeal against an order under S. 47 C.P.C and it is only an order within the meaning of S. 2(14) C.P.C This argument is only a repetition of the first point. As we have held that there was an appeal against the personal decree, the decision of the High Court would certainly be a decree within the meaning of the definition. We do not also see any merits in the third point. The learned Counsel contended that the present application on the basis of the original decree would not be maintainable as the rights of the parties are now governed by the amended decree and they should be worked out by separate execution application wherein the judgment-debtor would be at liberty to raise pleas open to him. Apart from the fact that this argument was not raised in the Court below, we cannot see how the present application is not maintainable. The decree that is now sought to be executed is a personal decree passed against the 1st defendant. It is certainly executable though subject to the statutory provisions of S. 48 C.P.C Nor do we find any merits in the learned Counsel's fourth point. He argued that execution petition should not have been amended after 12 years so as to enable the decree-holder to evade the provisions of S. 48 C.P.C This argument does not come with grace from a person who was responsible for getting the decree amended. At the instance of the first defendant the decree was amended. Pursuant to the amendment it was necessary for the decree-holder to make suitable amendments to the execution application. The learned Judge in the exercise of his discretion allowed suitable amendments to be carried out in the execution application. We cannot say that the order amending the execution application was either without jurisdiction or otherwise not valid.

The learned Counsel then argued that E.P No. 76 of 1946 is barred by limitation. To appreciate his argument a few facts may be recapitulated. As we have already pointed out, there was a mortgage decree against the hare of the 1st defendant and then a personal decree for the balance of the amount due after the properties pertaining to his share were sold. Against the 2nd defendant there was a money decree. The money decree was passed on 14th August, 1934. The personal decree against the 1st defendant was made on 15th November 1932 and was confirmed on 14th August, 1934. In execution of the personal decree against the 1st defendant E.P No. 281 of 1934 was filed for his arrest. He was arrested and that petition was closed on 24th June 1935. E.P Nos. 55 of 1935 and 301 of 1939 were filed in execution of the money decree against the 2nd defendant. The former was disposed of on 16th November 1937 and the latter on 9th July, 1940. E.P No. 302 of 1939 was filed against the 1st defendant for costs, and the costs were recovered on 8th February 1941. E.P No. 12 of 1941 was then filed against the 1st defendant in execution of his personal decree and it ended on 4th July, 1941. The present Application No. 76 of 1946 was filed on 4th March 1946. It is obvious from the aforesaid facts that both E.P Nos. 302 of 1939 and 12 of 1941 would be barred by limitation unless the final orders in E.P No. 55 of 1935 and E.P No. 301 of 1939 filed against the 2nd defendant would save the bar of limitation. The learned Subordinate Judge held that the personal decree against the father and the money decree against the son both spring out of the same debt and passed in the same suit, and therefore for the purpose of execution they should be considered as one decree against both the father and the son. In that view he held that the final orders in applications against the son would save the bar of limitation against the father. The relevant Article is Art. 182(5) of the Limitation Act read with the Explanation. The material part of the Article reads:

“For the execution of a decree or order of any civil Court not provided for by Art. 183 or by S. 48 C.P Code, 1908. Three years **** 5. (Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order ……Explanation I:— Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But where the decree or order has been passed jointly against more persons than one the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all.”

It is a well recognised principle of construction that in construing the pro-visions of the Limitation Act equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. The crucial point, therefore, is whether the money decree against the son and the mortgage decree against the father can be treated as one decree jointly passed against the father and the son. If it be a joint decree the final order in an execution application against the son would certainly save the period of limitation against the father. Unhampered by the decisions which we will immediately refer to we find it difficult to hold that there was a joint decree against the father and the son in O.S No. 114 of 1925. A perusal of the preliminary decree dated 16th January 1931 in that suit discloses that the Court gave the mortgage decree only against the 1st defendant's share in the family properties. The final decree also deals only with the liability of the father in regard to his share. The personal decree of 1932 was passed for the balance of the amount due to him after his share was sold. The money decree against the son was made in August 1934. The two decrees therefore were passed on different dates. Under the decrees the amounts would be realisable from their respective shares. The mortgage decree was executable from the date it was made absolute, and the money decree from the date it was passed. The date of the decree, the manner of realisation and the starting point of limitation are different. The only common feature is that the liabibility is the same and the payment or realisation in execution of one decree would pro tanto go in discharge of the other decree. But, in our view, this in itself cannot make the two separate decrees as one joint decree. One can visualise a situation when the decree against the father is barred by limitation whereas that against the son is kept alive or vice versa. If the preliminary decree on the mortgage and the money decree against the 2nd defendant were passed on the same date, the money decree might get barred even before the final decree in the mortgage suit was passed. We therefore hold that there was no joint decree against the father and the son within the meaning of the Explanation, and if so, the execution application against the father is barred by limitation.

We shall now proceed to consider the cases cited on either side to discover, if possible, the meaning to be attributed to the words “decree or order passed joinly against more persons than one”. In Appu Rao v. Ramakrishna Chetttar , there was a decree directing the defendant to execute a muchilika, and in appeal that decree was confirmed, but costs also were awarded to the plaintiff. The question was whether the previous applications for recovery of costs incidental to the execution proceedings could be relied upon to save the bar of limitation against the decree for the execution of the muchilika. The learned Judges held that the execution application was barred by limitation as the previous application did not relate to the execution of the decree or any part of it. According to the Madras High Court, a decree is a joint decree within the meaning of Explanation 1 to Art. 182 if any one of the reliefs given in the decree is against the defendants jointly even though some other reliefs may be given against the defendants separately, so that if in respect of the joint relief an application for execution is made against one of them, it will save limitation in regard to the other defendants even in respect of the reliefs which have been decreed against them solely, that is separately. The leading case taking this view is found in Suhramania Chettiar v. Alagappa Chettiar by Agent Palaniappa Chetti . There a decree awarded mesne profits against A and B jointly and costs jointly against A, B, and C. An application to execute the decree for mesne profits against A and B, the learned Judges held, kept alive the right to execute the decree for costs against C under Part 2 of paragraph 2 of Explanation to Art. 182 of the Limitation Act. At page 269 they observe:

“Reading the second part of the paragraph liberally, there can be no doubt that it applies. There has been a joint decree against more persona than one and there has been an application in execution of that decree against two of these persons and this application takes effect against all the persons against whom the joint decree was passed.”

This decision has been cited with approval in Puttaya v. Pultanaya , Parameswaran Nambudiri v. Seshan Patter . In Muhammed Sahoob Servai Sayabu v. Mayamad , the same principle was applied. Though the High Court of Calcutta also expressed a similiar view, the Allahabad High Court struck a dissenting note. In Nandled Saran v. Dharamkrite Saran , the learned Judges observe:

“We tit ink that where a decree is jointly passed against ail the defendants in one matter and severally against different defendants with respect to other matters, the first portion of Explanation 1 of Art. 182 should apply to decrees passed severally, and the second portions of Explanation 1 to the decree or decrees passed jointly. We find ourselves unable to agree with the opinion of the Madras High Court.”

In Ram Nrich Rai v. Deo Tiwari the facts were, in a suit against the members of a joint Hindu family based on a mortgage of the family properties it was found that a portion only of the mortgage debt was incurred for legal necessity. As to such portion as was supported by legal necessity the usual mortgage decree was passed against all the defendants. Simultaneously a simple money decree for the balance was passed against two executants of the bond in suit. The decree-holder first executed the decree so far as it was a decree for sale and then within three years of this, though more than three years from the date of the decree applied for execution of the simple money decree partly by arrest of one of the judgment-debtors. The learned Judges held the application was within time. At page 168 the reason of the decision is put in these words:

“In this case a decree was passed against all the defendants with regard to part of the mortgage money and this too, with regard to the same property. It seems to us that this was really one decree for the whole of the mortgage money.”

The facts bring that case within liberal interpretation of the Explanation. As there was a joint decree against all the defendants though in regard to a part of the claim it would be a joint decree even according to the Madras view. The Patna High Court had an occasion to deal with the scope of Explanation 1 to Art. 182 of the Limitation Act in Bishun Chand v. Abhoykumar Chand . The facts in that case were: a mortgage was executed in respect of two properties T and S. S had been sold for arrears of revenue, but the defendant Abhoy Kumar was in possession of the balance of the sale proceeds after the arrears of revenue were paid. A decree was passed on that mortgage for recovery of the amount by the sale of the D schedule property and also for recovery of the Rs. 715 from the money in the hands of Abhoykumar. The question in that case was whether the order in the first application of the sale of the properties D would save the bar of limitation for the application for the realisation of the amount in the hands of Abhoykumar. The learned Judges held that the execution application was not barred and made the following observation at page 703:

“It appears to me that the main relief, the realisation of the mortgage dues, being the one governing note of the decree, makes the two sources of realisation interdependent. This is the reason why a mortgagee is entitled to proceed against one of his securities at a time, if he thinks it to be sufficient for realisation.”

From the facts it is obvious that the sum of Rs. 715 was only the substituted security in the place of the property S, being the balance of the realisations from the sale of the said property. The debt was the mortgage debt. It was realisable from and out of the mortgaged properties. The realisations from one or the other would pro tanto go to reduce the liability of the other. In the circumstances of the case, the learned Judges held that the decree was really one decree for the whole of the mortgage money. In Motilal v. Champalal the decree-holder obtained a simple money decree against three brothers. The decree was passed against all the three brothers. But so far as two of them were concerned, the decree was made recoverable only from the family properties in their hands. The learned Judges held for the purpose of application of Explanation I that the mere fact that the decree differentiated between the judgment-debtors as regards the mode of execution did not affect the fact that all of them were jointly liable for the decretal amount. The Calcutta High Court had expressed its view on the interpretation of Art. 182 Explanation I of Schedule I Limitation Act in a decision reported in Charu Chandra Roy v. Hnshikesh Roy . In that case, in a mortgage suit a joint decree was passed against all the judgment, debtors and a personal decree was passed for costs against a particular judgment-debtor. The question was whether an application for execution of the joint decree would keep alive the entire decree including a portion granting separate relief which was not executed. At page 319 the learned Judges applied the following test, namely, whether the separate relief given against a particular judgment-debtor was really a part of the joint decree passed against all the judgment, debtors. Applying the test, the learned Judges ruled that the decree for costs against the particular judgment-debtor did not form part of the final mortgage decree and therefore, the money decree was not kept alive. Hanumanjee (Idol) v. Surajdeo Narain* is rather instructive. In that case a decree passed in 1937 provided that a certain sum of money was to be realised by the sale of the mortgaged properties after the expiry of the period of grace and that there would be a separate money decree for another sum. The mortgage-portion of the decree was made final in 1939, but no mention was made therein of the money portion of the earlier decree. Execution of the final decree was taken out in 1939. The decree-holder applied in 1941 for the execution of the money portion of the decree of 1937. The learned Judges held that the decree in 1937 was partly preliminary and partly final and Explanation I of Art. 182 could not be applied to such a decree. Sivalinga Tevar v. Srinivasa Mudaliar was relied upon for the contention that where a father and son are sued and there is a decree both against the father and the son, the decree as against the son will become barred by limitation if an application is not made within the time prescribed by Art. 182 notwithstanding that for one reason or other execution of the decree against the father is not barred by limitation. The learned Judges held that in such a case for the purpose of limitation the decree against the son must be looked at independently, from the decree against the father. The learned Judges in that case were not dealing with the Explanation with which we are now concerned. The Bombay High Court in a case reported in Dhulasaheb Dawlsheb v. Bijapur Municipality dissented from the Madras view and held that the Explanation would not apply in a case where a decree is partly joint and partly several. At page 255 Chagla, C.J commented on the decision reported in Subramania Chettiar v. Alagappa Chettiar as follows:

“With very great respect I am unable to agree with this view of the Madras High Court. It is difficult to understand why even a literal interpretation of the second paragraph of Explanation to Art. 182, should drive one to the conclusion to which the Madras High Court seems to have been driven. When the Explanation speaks of a decree, it must include a decree or part of a decree or a portion of a decree, and putting that interpretation upon the second paragraph of the Explanation it in easy to reconcile all difficulties and to come to a solution which is not illogical or anomalous.”

Though we cannot say that there is no force in the comment, we are bound by the Madras view. From a consideration of the aforesaid decision the law on the subject may be stated thus: The words in the Explanation are clear and they can be applied only to decrees that have been passed jointly against more persons than one. The question in each case is whether the decree is a joint decree within the meaning of the Explanation. If there is a joint decree against all the defendants the fact that the same decree gives a separate relief against one of the defendants does not make it any the less a joint decree within the meaning of the Explanation. The Madras view on this subject is unanimous and though the Calcutta High Court struck a different note, we prefer to follow the Madras view. Though a joint decree may be passed against all and a separate decree against some of them, the said decrees, though in form separate, are so interdependent that in certain circumstances may be treated as a joint decree. But we cannot introduce equitable considerations in construing the express words used in the Explanation and hold that decrees which are in form and substance separate decrees are in effect a joint decree within the meaning of the Explanation. In the present case, there were two separate decrees, one a money decree and the other a mortgage decree. They were passed against different defendants. They became executable at different times and the amount was realisable from different properties. It is also conceivable that the money decree getting barred long before a final decree is passed. We would be introducing a fiction if we held that an immediate executable money decree against one person is a joint decree against him and another against whom a preliminary mortgage decree was passed. The fact that the debt was the same and that any payment towards or in discharge of the money decree or the mortgage decree, as the case may be, might pro tanto discharge the other in itself cannot be a ground for holding both the decrees as one joint decree against the defendants. It may be reasonable to hold so, but it would be doing violence to the language of the Explanation. We therefore hold that the execution applications filed against the 2nd defendant would not save the bar of limitation against the 1st defendant.

Even so, it was argued by Mr. Rama Rao Sahib that that plea is not open to the 1st defendant at this stage on the principle of constructive res judicata. E.P No. 12 of 1941 was filed by the decree-holder on 3-1-1941 for executing the decree for a sum of Rs. 1,47,307-14-6. The relief asked for was the attachment of the excess sale proceeds due to the 1st defendant which was in deposit to the credit of E.P No. 302 of 1939. Notice was issued to the 1st defendant. He was served on 12-3-1941 and he filed a counter on 29-3-1941. The application was posted for trial to 5-4-1941. The learned Judge passed the following order:—

“There is no plea, worth consideration. The decree-holder cannot be asked to enforce some other remedy just to oblige this defendant. Attachment effected will stand. Petitioner may apply for a cheque.”

E.P No. 161 of 1942 was filed on 70-7-1942 for executing the personal decree against the 1st defendant. The relief asked in that application was for attachment of sale proceeds in E.P No. 41 of 1941 in C.S No. 75 of 1934. Notice was served on the 1 at defendant in person and the 1st defendant filed a counter stating that he had no interest and he had no objection. The amount was attached and transferred to the credit of O.S No. 114 of 1925 and was paid towards the decree. In both these applications the 1st defendant should have taken the plea that the application was barred by limitation. As such a plea was not taken and as execution was ordered, in our view the judgment-debtor is now precluded on the principle of constructive res judicata to raise the plea of limitation over again. The application of the principles of constructive res judicata to orders in execution has been decided as early as 1882. In Mangal Pershad Dichit v. Girja Kant Lahiri, the Judical Committee held that were an execution petition was barred by limitation but execution had been ordered to proceed it was not open to the judgment-debtor in a subsequent application to plead that the former application was barred by limitation. The same principle has been applied and followed by the Judicial Committee in a later decision reported in Rajah of Ramnad v. Velusami Thevar . In Adilakshmiammal v. Srinivasa Goundan , Mr. Justice Horwill held that the order in a previous application directing the sale of the properties would bar the judgment debtor from raising the plea in a subsequent application that it was barred by limitation, An exhaustive discussion of the application of the principle of constructive res judicata to execution proceedings will be found in Venkataranga Reddi v. Chinna Sithamma . The facts of that case are, a decree for mesne profits had been passed against a Hindu father and his undivided minor sons, directing recovery of the profits from the father person, ally and from the family properties of all of them. An application for execution was instituted against the father alone, but he did not appear and oppose the application as being time, barred despite notice to him. The learned judges held that the order passed in such an application would preclude him from raising a plea of limitation in subsequent proceedings, even though the application on which the order was passed did not fructify and was eventually dismissed. We respectfully agree with the view expressed in that judgment. But the learned Counsel for the appellant contended that the principle of constructive res judicta should be very cautiously applied to execution proceedings and that in this case his client did not raise the plea of limitation in those two applications as his client was bound to pay the costs awarded against him in execution proceedings. In the Court below this plea, namely, that he did not press his plea of limitation as the orders for payment of execution costs passed against him were not barred by limitation. Indeed, a perusal of the execution applications shows that the personal decree was being executed not any orders for costs. In our view, the present contention is only an afterthought. Learned Counsel for the appellant relied upon the decision in Kailasa Thevar v. Ramaswami Iyengar . But the facts in that case are different. Following the earlier decisions the learned Judges held that objections as to the amount of the decree could be raised in later execution proceedings though they were not raised in prior execution proceedings. We therefore hold that the orders in E.P No. 12 of 1941 and 161 of 1942 preclude the appellant on the principle of constructive res judicata from raising the plea of limitation in the present E.P

The learned Counsel for the appellant then contended that the figure of Rs. 30,005-14-0 is not correct. The first objection raised by him relates to 2 items of Rs. 24,300 and Rs. 42,513. The sum of Rs. 24,300 represents the amount for which the judgment-debtor's properties were sold on 13-7-1936 in E.P No. 55 of 1935. The sum of Rs. 42,513 was credited towards the decree on 11-1-1932. It represents the sale proceeds in regard to the sale of the 1st defendant's properties on 5-10-1931 in E.P No. 48 of 1931. The learned Advocate's argument is that those two amounts were credited to wards the decree on the date of the confirmation of the sales whereas they should have been credited on the date of the sale itself. This would make a difference in interest. He relied upon S. 65 Civil Procedure Code. Under that Section where immoveable property is sold in execution of a decree and such sale has become absolute the property would be deemed to have vested in the purchaser from the time the property is sold and not from the time when the sale becomes absolute. Under this Section the vesting of the property is thus made to relate back to the date of the sale. Relying upon this Section the learned Counsel pressed on us to hold that the sale price should have been credited on the date of the sale itself. We think there is considerable force in this argument. When the decree-holder-purchaser becomes the owner of a property from the date of the sale itself it follows that the debt was pro tanto reduced from that date. But the learned Counsel for the respondent contended that he had not taken possession. The fact that he did not take possession could not confer on him higher right than that which flows from the provisions of S. 65 Civil Procedure Code. As he became the owner of the properties on the dates of the sale it may be open to him to take appropriate proceedings for the mesne profits from the date of the sale itself. It is then contended that this point was not raised in regard to the second item of Rs. 42,513. But as the facts are not in dispute we cannot reject the plea of the appellant on that ground. We therefore direct these two items to be credited towards the decree on the dates of the sale, that is, 13-7-1936 in the case of Rs. 24,300 and 5-10-1931 in the case of Rs. 42,513.

It is then contended that the Court below was wrong in directing his client to pay the entire costs of Rs. 4,343-12-7. His argument is that as the decree was split up the costs also should be split up as the costs in O.S No. 114 of 1925 were awarded on the entire claim. Apart from the fact that this point was not taken in the Court below, we are of opinion that there is no merit in this contention. The costs in question were awarded only against the 1st defendant and that decree had become final. In I.A No. 11 of 1945 the learned Judge, though he apportioned the debt between the judgment-debtors, directed that full costs should be paid by the defendants in O.S No. 114 of 1925. That order also had become final as we dismissed the appeal. Apart from that if we accept the argument of the learned Counsel logically the costs awarded in O.S Nos. 75 of 1934 and 114 of 1925 should be clubbed together and divided in equal shares between the defendants in both the suits. If so calculated, we find he has to pay a higher amount than that he has to pay under the decree. We therefore negative this objection also.

Then the learned Counsel put before us a memo filed by him in the Court below dated 12-11-1946 and contended that we should accept that memo. A perusal of that memo shows that he calculated on the apportioned principal compound interest at 12 per cent, till the date of the decree and thereafter at 6 per cent, simple interest on the apportioned principal amount. This is contrary to the express terms of the preliminary decree. Under the preliminary decree the principal amount was directed to be paid at 12 per cent, compound interest till the date of the decree and thereafter at 6 per cent, on the total amount. The calculation accepted by the lower Court followed the directions in the preliminary decree. The fact that the appellant was able to get a relief under S. 14 of the Madras Agriculturists Relief Act would not, in our view enable him to re-open or question the directions in regard to the interest given in the preliminary decree.

Mr. Ramabhadra Aiyar then contended that a sum of Rs. 1550 attached in E.P No. 158 of 1944 was not credited towards the decree. Mr. Rama Rao Sahib says that this sum was not drawn out by his client. The lower Court will ascertain whether the said amount was drawn out by the respondent or whether that amount is in deposit in Court to be credited toward the decree. It suck amount is available or already drawn out the Court will give credit towards the decree.

In the result, the appeal is allowed in part. The parties will pay and receive proportionate costs. The lower Court will proceed with the execution after allowing the decree-holder to make suitable amendments as per our directions.

C.M.A No. 128 of 1947:—No separate arguments were addressed in this appeal. This appeal is therefore dismissed, but in the circumstances, without costs.

N.R.R