Jayachandra Reddy, J.:— These four cases are connected and they can be disposed of together. These matters arise out of execution proceedings relating to the decree in O.S No. 15 of 1945 on the file of the Subordinate Judge, Amalapuram. The litigation has a long history and the necessary facts for the purpose of deciding the questions involved in these four cases are as follows:

2. One Vajjula Suryanarayana Murthy filed a reversionary suit O.S No. 15 of 1945 for possession of various suit schedule properties including items 76 to 79 of the plaint C. Schedule. Defendants 58 to 62 and 82 in the said suit claim to be in possession of these items and disputed the right of the plaintiff to get a decree against them. On the other hand defendant No. 67 claimed the entire extent of these very same items as belonging to her exclusively. Therefore, there was a triangular contest. In the trial Court there was a decree in favour of the plaintiff as against defendants 58 to 62 and 82 and they were directed to put the plaintiff in possession of certain specified extents in their possession. The claim of defendant No. 67 was negatived and she was also asked to put the plaintiff in possession of the entire extent of those items. Against the decree of the trial Court appeals were filed in the Madras High Court. A.S No. 299 of 1947 was filed by defendants 58 to 62 and 82. It may be mentioned here that defendant No. 82 who is said to be the tenant was in possession of these lands. A.S No. 303 of 1947 was filed by defendant No. 67 and others in the said High Court. In that appeal also defendant 67 claimed the entire items for herself while defendants 58 to 62 and 82 claimed a portion to an extent of Ac. 4-79 cents out of these hems in their own right as against the 67th defendant. The Madras High Court dismissed A.S No. 299 of 1947 and allowed A.S No. 303/47. Against the said Judgment of the Madras High Court the plaintiff preferred an appeal to the Supreme Court. The appeal was allowed and the Supreme Court remanded A.S No. 303 of 1947 on 30-10-1964 to this Court for fresh disposal and the same was dismissed by a Division Bench of this Court on 10-10-1966, granting a decree to the plaintiffs in respect of all the items viz., items 76 to 79 to an extent of Ac. 15-11 1/2 cents including the lands held by defendants 58 to 62 and 82. It may be mentioned here that defendant No. 60 died on 1-7-1960. Before the Supreme Court defendants 58 to 62 and 82, were not parties. After the decision of the Andhra Pradesh High Court the decree holder filed E.P 7/67 before the Sub-Court, Amalapuram for transmission of the decree to the District Munsiff's Court, Tanuku in whose jurisdiction the properties are situated. It was accordingly transmitted. The decree holder filed E.P No. 50 of 1967 in the District Munsiff's Court, Tanuku for delivery of possession of items 76 to 79 and portions of the said items have been delivered under the orders of the Court. Defendant No. 58 and the legal representative of defendant No. 60 and defendants 61 and 62 filed execution applications (E.A Nos. 238, 239, 240 and 266 of 1967 in E.P No. 50 of 1967) Claiming title to the said extents of the property and that the decree was not executable. The said applications were dismissed by the trial Court and they preferred appeals against the said orders (A.S No. 157 to 160 of 67) and defendant No. 82 filed A.S No. 187 of 1967 against the orders in E.P No. 50 of 1967. The said appeals were allowed holding that these defendants were not before the Supreme Court and they were not bound by the Judgment of the Supreme Court. Aggrived by the said orders the decree-holder preferred C.M.As Nos. 2 to 6 of 1969 and the said appeals were allowed and the orders of the trial court dismissing E.As 238 to 240 and 266 of 1967 and the order made in E.P No. 50 of 1967 directing delivery of the property, were confirmed. The decree holder in pursuance of the orders of the High Court, filed E.P No. 40 of 1971 to revive E.P No. 50 of 1967 and the trial Court ordered on 12-12-1977 the delivery of the properties by 10th March, 1977. One Mutyala Satyanarayana and three others (appellants 6 to 9) caused obstruction claiming to be the tenants and that they are entitled to remain in possession of the property under the Tenancy Act. They claimed to be inducted into possession of the property after the suit had been instituted and also after the matter was finally concluded by the High Court on 10-10-66. The decree holder filed E.A No. 141 of 1971 under Or. 21 Rules 35 & 38 C.P.C to direct the delivery of the property covered in E.P No. 40 of 1971 after removing the obstruction caused by respondents 6 to 9 with police aid. In the said E.A respondents 1 to 4 filed counters and contended that E.P No. 50 of 1967 if self was not maintainable and therefore E.P No. 40 of 1971 was bad and in the result the decree holder had no right to seek any police aid for obtaining delivery of the E.P Schedule property. They also contended that the High Court passed the decree on 10-10-1966 after the death of defendant No. 60 and therefore the same abated inasmuch as no legal representatives were brought on record, and that the High Court passed a decree against a dead person and therefore it is not valid and enforceable even against the other defendants. The other tenants also filed counters. The learned District Munsif, dismissed E.A No. 141 of 1971 along with other E.As filed by other parties seeking only symbolic delivery with which we are not concerned. The learned District Munsif however dismissed E.P No. 40 of 1971 also as not maintainable. Aggrieved by the orders of the learned District Munsif in E.A No. 141 of 1971 and E.P 40 of 1971 the decree-holder filed A.S No. 12 of 1972 and A.S No. 13 of 1972, respectively, in the court of the Subordinate Judge, Tanuku, Nunna Bhavanamma the legal representative of defendant No. 60 raised a preliminary objection in both these appeals that the Sub-Court had no jurisdiction to entertain the appeals and that the appeals lie only to the High Court on the ground of pecuniary jurisdiction. These applications were numbered as I.As 98 and 99 of 1977. The learned Subordinate Judge dismissed both these applications and allowed A.S Nos. 12 and 13 of 1972. As against the orders in A.S Nos. 12 and 13 of 1972 the respondents therein have preferred C.M.S As. 42 and 43 of 1977 and against the orders in I.As 98 and 99 of 1977 C.R.Ps 4041 and 4042 of 1977 are field in this Court. At the outset Sri N. Bapiraju, the learned Counsel for the respondents, contended that C.M.S.As 42 and 43 of 1977 are not maintainable and at the most revision petitions could have been filed in this Court. According to the learned counsel in the definition of “decree” as amended, the words “section 47” have been omitted, and as a result the questions that are to be decided by the executing Court under Sec. 47 do not come within the meaning of the decree and consequently an appeal or a second appeal under Section 100 C.P.P does not lie to the High Court. The learned counsel for the appellants, on the other hand, contended that Section 97(2)(a) of the Attending Act makes it clear that the amended provisions are not retrospective. This contention of the learned counsel for the appellants has to be rejected in view of section 97(3) of the amending Act which is in the following terms:

“97(3). Save as otherwise provided in Sub section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement”.

3. In the instant case though the proceedings were initiated prior to the amendment of the C.P.C the judgment of the Subordinate Judge which is assailed, was rendered in the month of October, 1977 after the amended Code came into force. Section 97(3) which is extracted above dearly lays down that the amended Code had retrospective effect and it applies to all the pending proceedings except in so far as it is specifically provided otherwise. In Narayana Murthy v. Srikakulam Co-operative Central Bank (1) 1978 (II) A.L.T 353 Jeevan Reddy, J. to whose notice section 97(3) of the Amendment Act was not brought, in the first instance held that the amended provisions do not affect a subsisting proceeding, but later having come across section 97(3), observed thus:—

“This sub-section does not leave any doubt that except in so far as specifically provided, the Amending Act does have retrospective effect and it applies to all the pending proceedings.”

4. In the case before us only the appeal before the lower Court was saved by Section 97(2)(a). Therefore, a further second appeal under Section 100 C.P.C against the order of the Sub Judge is ruled out inasmuch as the order passed by the Sub Judge in an appeal arising out of a proceeding under Section 47 does not amount to “decree”.

5. Sri J.V Krishna Sarma, the learned counsel for the appellants however relied on a decision of this court in Nandipati Tati Reddy v. Syed Meera Hymanne (2) 1978 (II) A.L.T 521. That was a case relating to attachment proceedings under Or. 21 Rules 58 and 59 C.P.C Narssinga Rao, J. held, that with regard to an attachment subsisting before the enforcement of the amended provisions, the old provisions would continue to apply. This decision of the learned Judge is with reference to Section 97(2)(q) of the Amending Act which saves those proceedings. Therefore, the learned Judge did not consider the scope of Section 97(3). As a matter of fact in paragraph 15 of the Judgment the learned Judge observed that for purposes of that case it was not necessary to consider the question whether the remedy of a suit contemplated by Order 21 Rule 63 of the unamended Code would be available with regard to any order passed in the claim petition. The learned counsel for the appellants also relied on a decision of the Allahabad high Court in Shyama Devi v. Ramjas Rolling Mills (3) A.I.R 1979 Allahabad, 16 and other decision of the Delhi High Court in Syndicate Bank v. Rallies India Ltd. (4) A.I.R 1979 Delhi 40. We have examined both these decisions. In the first decision the learned Judge held that Section 97(2)(q) of the Amendment Act is an exception to the law enunciated in section 97(3) of the Amendment Act. There can be no dispute about this principle. In the decision of the Delhi High Court the learned Judges made a reference to Section 97(3) and held that the said Section deals with contingencies other than provided by Sub-Sec. (2) of Section 97. It can, therefore, be seen that these two decisions are of no assistance to the appellants. In this context we may also refer to a decision of the Calcutta High Court in Chanti Charan v. Mohendra Nath (5) A.I.R 1979 Calcutta 12, wherein it is held thus:—

“Sub-Section (2) of Section 97 by its various clauses provides for exclusion of the operation of the provisions of the amending Act in respect of various sections, orders and rules thereunder, providing that the amending provisions as expressly mentioned will have no affect on or shall not apply to pending proceedings. The provisions of Sec. 58 as amended will thus apply to all pending proceedings, as the operation of the amended provisions of this section has not been excluded by any clause of sub-section (2) of Section 97 of the amending Act and has been made expressly applicable to all pending proceedings by sub-section (3) of the said Section 97”.

6. It can, therefore be seen that the provisions of the old Civil Procedure Code would continue to apply to such of those proceedings excepted under sub-Sec. (2) of Sec. 97. In respect of all other proceedings which are not thus saved, the provisions of the amended Code would apply.

7. It is next contended that the right of appeal is a statutory right and the appellants cannot be deprived of the same. The learned counsel placed reliance on a decision of the Supreme Court in Dajl Saheb v. Vithalrao Mane (6) 1956 Supreme Court Journal, 70, wherein their Lordships held that the defendants in that case had a vested right of appeal on the date of decree and the same did not become extinghuished with the abolition of the Federal Court. Another decision relied upon by the learned counsel in this regard is Raja Kulakarni v. State of Bombay (7) 1954 Supreme Court Journal 50. That was a case which arose under the Industrial Disputes Act, and on an examination of Section 24 of the Industrial Disputes Act their Lordships of the Supreme Court held that the natural construction requires for its application no more than that appeal should be pending and there is nothing in the language to justify the introduction of the qualification that it should be valid or competent. We are unable to see how these two decisions are of any help to the earned counsel for the petitioners. We are concerned here with a case where the right of appeal is expressly taken away. The learned counsel for the appellants cannot be heard to say that the Legislature has no right to take away the right of appeal by enacting a provision of law. In K.H Dada (India) Ltd. v. State of M.P (8) AIR 1953 Supreme Court 221 their Lordships have clearly laid down that such a vested right cannot be taken away except by necessary enactment or intendment. It may, not be necessary to refer to any more decisions on this question as this is a well-settled principle. For the aforesaid reasons we have to uphold the preliminary objections and hold that the two Civil Miscellaneous second appeals are not maintainable. However, having regard to the facts and circumstances of the case we were satisfied that the learned advocate should be permitted to convert them into revision petitions and accordingly he was permitted and the Civil Miscellaneous Second Appeals are numbered as Civil Revision Petitions Nos. 7975 and 7576/79, and thereafter we heard arguments on the merits. It is needless to say that the scope of the revisions is limited and the learned counsel on both sides were asked to bear this in mind while advancing their arguments.

8. Sri J.V Krishna Sarma, the learned counsel for the petitioner raised several objections about the maintainability of the execution petitions. Firstly he contended that the transmission of the decree by the Subordinate Judge's Court. Amalapuram, to the District Munsif's Court. Tanuku, directly is illegal and therefore the decree itself is not executable. The Second contention is that E.P No. 40 of 1971 is barred by limitation. The Third contention of the learned counsel is that since defendant No. 60 died on 1-7-1960 the decree passed by the Andhra Pradesh High Court on 10-10-1966 after remand by the Supreme Court was against a dead person, since no legal representatives were brought on record, and therefore the decree as a whole is a nullity and it is not executable against anybody. Even otherwise, since it is a joint decree and when it is found to be nullity at least defendant No. 60 is concerned, the same cannot be executed against the other judgment-debtors. The fourth contention of the learned counsel for the petitioners is that the appeals (A.S Nos. 12 and 13 of 1973) on the file of the Subordinate Judge's Court, Tanuku, are not maintainable for want of jurisdiction. According to the learned counsel as per the provisions of the Civil Courts Act and having regard to the value of the subject matter of the suits the appeals should have been filed in the High Court.

9. All these contentions except the fourth one have to be rejected outright since they were not raised at the appropriate stage by the judgment-debtor-petitioners. The Judgment of the High Court in C.M.S.As 2 to 6 of 1969 has become final. The Division Bench further held thus:—

“The trial Court rightly held that so far as they are concerned the decree for possession in favour of the plaintiff already become final and conclusive.”

10. Accordingly the Division bench set aside the order of the District Judge and confirmed the order of the Additional District Munsif, Tanuku, dated 7-10-1967 made in E.As 238, 239, 240 and 236 of 1967 and E.P 50 of 1967. It can, therefore, be seen that the few objections filed by these judgment-debtors before the learned Additional District Munsif, Tanuku were over-ruled and E.As 238, 239, 240 and 266 of 1967 were dismissed and E.P No. 50 of 1967 was ordered and 3 direction was given that the properties should be delivered by 28-10-1967. This order has become final as per the orders of the Division Bench of this Court in A.A.A.Os 2 to 6 of 1939. Therefore, it is not open to the Judgment-debtors to raise fresh objections.

11. Sri Krishna Sarma, the learned counsel however contended that these petitioners were not parties to A.S No. 303 of 1947 filed by the Judgment-debtor No. 67 and they were also not parties before the Supreme Court and therefore the orders in E.P No. 50 of 1967 and the subsequent orders by the High Court in C.M.S.As 2 to 6 of 1969 are not binding on them. This contention has no force. The present petitioners filed E.As 238, 239, 240 and 266 of 1967 in E.P No. 50 of 1967 and pleaded that the said Execution Petition is not maintainable. Therefore, it cannot be said that they were not parties to E.P 50 of 1967. It must also be remembered that they were also respondents in C.M.S.As 2 to 6 of 1969 which were allowed against them. Therefore these petitioners cannot be heard now to say that they are not parties to E.P 50 of 1967.

12. The learned counsel however invited our attention to the petition in E.P No. 50 of 1967 and contended that the names of the present petitioners are not shown as judgment-debtors and therefore it must be held that they are not parties. This contention also has no substance Firstly it must be rejected on the ground that these judgment-debtors themselves came forward and filed objection petitions in E.P No. 50, 1967 and even otherwise Reddi Ratnam the 82nd defendant who is in actual possession of these lands as a tenant was made a party in E.P No. 50 of 1967. Therefore, it cannot be said that the orders passed by the Additional District Munsif, Tanuku, in E.P No. 50 of 1967, and affirmed by the High Court in A.A.A.Os 2 to 6 of 1969 are not binding on these petitioners. Admittedly these objections, viz., that the transmission is illegal and that the decree passed against defendant No. 60 is a nullity were not raised earlier. The question of limitation also was not raised and it is not open for the petitioners to raise these objections now when the orders of the High Court in A.A.A.Os 2 to 6 of 1969 have become final on the simple ground that the C.M.S.As Nos. 42 and 43 of 1977 which are converted as Revision Petitions are liable to be dismissed. However, since lengthy arguments were advanced in support of this contention, we shall proceed to consider the same.

13. Sri J.V Krishna Sarma, the learned counsel for the petitioners strenuously contended that the transmission of the decree by the Subordinate Judge, Amlapuram to the District Munsif's Court, Tanuku, is illegal According to the learned counsel under Order 21 Rule 5 of the Old Civil Procedure Code if the decree is to be sent for execution to a Court in a different District, the Court which passed it shall send to the District Court of the District in which the decree is to be executed, and if the Court which passed the decree directly sends the decree to the execution Court without sending it to the District Court, the transmission itself is illegal and therefore the decree is inexecutable. According to the learned counsel in the instant case the Subordinate Judge, Amalapuram transmitted the decree directly to the Court of the Principal District Munsif, Tanuku and as such the transmission is illegal as there was a contravention of sec. 39 & Or. 21 Rule 5 C.P.C As already mentioned, this objection was not taken earlier. However the question is whether such a transmission amount to an illegality or irregularity. The learned counsel for the respondents contends that it was only an irregularity, whereas Sri Krishna Sarma contends that it is an illegality. In Subrahmanya Ayyar v. Swaminatha Chettiar (9) A.I.R 1928 Madras 746 a Division Bench consisting of Ramesam and Devadoss JJ. considered the question whether the court which passed the decree can execute the decree although it has lost territorial jurisdiction. Ramesam J. in a separate judgment made some observations thus:—

“If both the courts are situated in the same district, seeing that the transfer might be made directly from the first court to the second court, without the intervention of any superior court, if may be said that the objection by reason of the language of section 38 or, in other words by reason of the irregularity that the decree had not been formally sent to the second court which has territorial jurisdiction is not fatal to the competency of the second court to pass the order. In such a case, inspite of the irregularity, an order directing execution after notice may make the matter resjudicata, but whereas in this case, the transfer cannot be made directly to the second court, and it should only be made first to the District Court of Tanjore and the District Court may either execute the decree itself or may send it to the Sub-Court (vide Or. 21 R. 5 C.P.C) the irregularity cannot be overlooked as a mere irregularity. It seems to me that the irregularity amounts to a want of jurisdiction in the Sub-Court of Tanjore and to a trespass upon the powers of the superior court namely the District Court of Tanjore.”

14. The learned counsel for the petitioners strongly relied on these observations and held that the transmission directly to the executing Court without sending it to the District Court is an illegality. We have carefully examined that decision and we find that the scope of Order 21 Rule 5 C.P.C did not directly come up for consideration before the Bench in view of the facts of that case. However, subsequently there are number of decisions which lay down that such a transmission is only an irregularity. Some decisions are cited at the Bar which show that different High Courts have taken different views. But we are inclined to hold that such a transmission is only an irregularity. In Inderdeo Prosad Rai v. Deonaravan (10) AIR 1946, Patna, 301 a Division Bench of the Patna High Court held that where a decree is sent direct to a Court in another district having the necessary territorial and pecuniary jurisdiction instead of through the District Court as prescribed by Order 21 Rule 5, the procedure is only an irregularity. It is also held that such an irregularity must be deemed to have been waived if no objection was taken for a long time. In Maharaj Kishore v. Raja Ram (11) AIR 1954 Patna, 164 it was held that the jurisdiction to transfer a decree for execution from one court to another arises not under Order 21 Rule 5, but under Sec. 39, and that Order 21 Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out, and failure to observe the provisions of Order 21. Rule 5 or Rule 8 is a mere irregularity and does not affect the jurisdiction of the Judge to execute the decree. Sri Krishna Sarma next relied on a decision of a Division Bench of the Calcutta High Court in Debi Dial Sahu v. Moharaj Singh (12) I.L.R 22 Calcutta, 764 wherein it was held that the Munsif's Court to which a decree was sent for execution, had no jurisdiction to execute it without an express order of the District Judge. The learned Judges had to consider Sec. 226 C.P.C as it stood then. The judgment itself is very short and the question whether such a contravention would amount to irregularity was not considered. Therefore, we are unable to persuade ourselves to agree with the view taken by the Calcutta High Court. In Sreenivasa Shenoi v. Bank of Madura Ltd. (13) 1970 Kerala Law times 919 a Division Bench of the Kerala High Court held that non compliance with the provisions of Order 21 Rule 5 is only an irregularity and does not deprive the court of its inherent jurisdiction to execute the decree and that the jurisdiction to transfer a case for execution from one Court to another arises not under Order 21 Rule 5 but under Section 39 C.P.C In that case a decree for execution was directly transmitted by one District Court to a Subordinate Judge's Court in another District. The Division Bench of the Kerala High Court also considered the judgment of the Calcutta High Court and dissented from the same observing that there was very little discussion on the point. The learned counsel for the petitioners relied on another decision of the Patna High Court in Mohd. Mehdi v. Zai nuddin Hassan (14) A.I.R 1957 Patna 654. In that case it was held that the Subordinate Judge at place A had no juridiction to execute the decree unless the provisions of Order 21 Rule 8 had been complied with. The principle laid down in that case has no application to the facts of the present case.

15. We may also observe that the observations made by Ramesam, J. in Subramanyam Ayyar's case (9) AIR 1928 Madras 746 supra are in the nature of obiter and even otherwise the case is distinguishable. In Ch. S.S.P Sarma v. Omprakash (15) A.I.R 1970 A.P 307 Parthasarathi, J. while considering the scope of Order 21 Rule 5 and, Section 39 CPC referred to the observations made by Ramesam, J. Parthasarathi, J. after extracting the facts in Subramanya Ayyar's case (9) A.I.R 1928 Madras, 746 supra, in paragraph 8, and after extracting the observations made by Ramesam, J. at page 751, held thus:—

“The facts of that case, therefore, did not give rise to the question whether it was not competent for a Court that passed the decree to send it direct to another Court in an outside district instead of routing the transmission through the District Court. It cannot be gainsaid that the jurisdiction of the transferee Court is derived by the act of transfer of the Court that passed the decree. In the case dealt with by the Division Bench in A.I.R 1928 Madras 746 (supra) there was no act of transfer. The execution petition was straightway presented to the Tanjore Court, because the decree-holder acted on the basis that the change in the territorial jurisdiction endowed the Tanjore Court with the competence to levy execution, even without a transfer. No question can be said to have arisen for decision in the case, whether a transfer if made by the Court that passed the decree but not made through a District Court, did not serve as an adequate foundation for the jurisdiction of the transferee Court. The dicta of Ramesam, J. (no observations of the other Judge in the Division Bench relevant to this context are brought to my notice) were, therefore, made with reference to a situation that did not call for decision in that case.

16. We are in respectful agreement with the observations of Parthasarathi, J. in Mohanlal v. Benoy Krishna (16) A.I.R 1953 Supreme Court p. 65 their Lordships of the Supreme Court had observed that the Civil Procedure Code does not prescribe any particular form for an application for transmission of a decree under Sec. 39 and that a contravention of Order 21 Rule 6 amounts to an irregularity. If that be so, the sending of a decree directly to the executing Court without routing the same through the District Court should, also amount to an irregularity only. That apart in the instant case it must also be held that this objection, even if held to be valid should be taken to have been waived (Vide Inderdeo Prasad Rai v. Deonaravan (10) A.I.R 1946 Patna 301 supra). In Bala Krishnayya v. Linga Rao (17) A.I.R 1943 Madras 449 a Division Bench of the Madras High Court considered the scope of section 39 and held thus:—

“There can be no doubt that the Tenali Sub-Court cannot execute the decree unless the Bapatla Court which passed the decree had sent it to the Tenali Sub-Court for execution under Sec. 39, Civil P.C and if the objection had been taken by the appellant in the first instance, that is, in E.P 57/1937 it should have prevailed. But now after the order for execution which had been made made in it though exparte, the objection to the jurisdiction cannot be sustained unless we can hold that it is not a case of a mere irregularity in the assumption or exercise of jurisdiction, as distinct from one of absolute want of jurisdiction”.

17. The Supreme Court in Ramanna v. Nallaparaju (18) A.I.R 1956 Supreme Court, 87 has approved the ratio in Balakrishnayya v. Linga Rao (17) A.I.R 1943 Madras, 449 and held in paragraph 13 as follows:—

“It was held therein that the Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived and cannot be raised any later stage of the proceedings.”

18. We, therefore, hold that the transmission of the decree by the Supreme Court, Amalapuram directly to the District Munsif's court, Tanuku, which is in a different district, without routing the same through the District Judge, is only an irregularity. Even otherwise, since the petitioners have not taken this objection in the first instance it must be deemed that the objection was waived and they cannot be permitted to raise it at a later stage.

19. We shall now deal with the question of limitation. The Madras High Court by its judgment dated 25.9.1951 dismissing the appeal No. 299 of 1947 filed by the petitioners herein and allowed A.S 303/47 filed by defendant No. 67. Sri Krishna Sarma invited our attention to some of the clauses in the decree and contended in the first instance that the Madras High Court did not in any manner determine the title and extent and possession of defendents 58 to 62 and 82 and in view of the fact that they were not made parties before the High Court after remand any decision rendered by the High Court in AS 303/47 after remand by the Supreme Court is not binding on them. In support of this contention reliance is placed on the finding of the Madras High Court in the judgment in AS 299/47 and 303/47. One of the findings relied upon is as follows:—

“A.S No. 299 of 47 relates to items 76 to 79 an extent of 4.79 acres in which defendants 58 to 62 and 82 are interested. These items are also claimed by the appellants in A.S No. 303 of 1947. Any way the appellants in A.S No. 299 of 1947, have to lose these items either in favour of the plaintiff or in favour of the appellants in A.S No. 303/47. The appeal is dismissed except with regard to the modification regarding costs and court fee payable by the 82nd defendant”.

20. The other finding in the judgment in A.S No. 303 of 1947 is as follows:—

“It follows that A.S No. 303 of 1947 should be allowed in respect of these four items 76 to 79, to the extent in these items to which the 67th defendant is entitled and which is in her possession. The title and the extent of possession of defendants 58 to 62 and 82, in these four items are left undetermined”.

21. Strongly relying on this finding the learned counsel for the petitioners contended that so far as the petitioners are concerned the judgment and decree in AS 299/47 do not in any way affect their right. We see no force in this submission. So far as the finding in AS 299/47, it can be seen that it is categorical and is against the petitioners. The Division Bench of the Madras High Court held that defendants 58 to 62 and 82 have to lose these items either in favour of the plaintiff or in favour of the appellants in A.S 303/47. The other finding is only in A.S 303/47 and the petitioners cannot take advantage of the observations made while disposing of the appeal in A.S 303/47. The finding in AS 299/47 is final so far as the petitioners are concerned. So far as AS 303/47 is concerned, which was filed by defendant No. 67 it was allowed and it is against the, said judgment the plaintiff appealed to the Supreme Court and the matter was remanded, and a Division Bench of this court consisting of Chandrasekhara Sastry and Ktishna Rao, JJ., allowed the same. A similar objection was raised in EA 266/67 in EP 50/67 and it was rejected by the First Additional District Munsif, Tanuku, which was confirmed by the High Court in A.A.A.Os 2 to 6 of 1969. Therefore, this objection on that ground also fails.

22. The learned counsel for the petitioners however contends that even assuming that there is a decree in A.S No. 299/47 it cannot be executed as it is barred by limitation According to the learned counsel E.P No. 40/71 is not a continuation of EP 50/67 and hence it is barred by limitation. It must be noted here that E.P No. 40/71 was filed on 4-2-1971 whereas the decree in A.S No. 299/47 was passed in the year 1951 and therefore, according to the learned counsel, it is barred by limitation. Here again, the contention of the learned counsel is devoid of force. First it must be noted that E.P No. 50/67 is not barred by limitation though filed in 1967 The Madras High Court allowed A.S No. 303/47 and dismissed A.S No. 299/47, by a common judgment. They did not determine the extents belonging to defendants 58 to 62 and 82. They however observed that they have to lose either to defendant No. 67 or to the plaintiff. Therefore the plaintiff could not have executed the decree against defendants 58 to 62 and 82. It is only after the Supreme Court remanded the matter and after the Division Bench of the Andhra Pradesh High Court again dismissed the appeal No. 303 of 1947 filed by the 67th defendant on 10-10-1966, the decree became executable against defendants 58 to 62 and 82 also. Therefore, E.P No. 50 of 1967 was within time and it was held to be executed and delivery of possession was ordered by the District Munsif on 7.10.1967 Against these orders A.S No. 157 to 160 and 187 of 1967 were filed to the District Court, Eluru, and they were allowed on 31-8-1968. Against these orders the plaintiffs filed A.A.A.Os 2 to 6 of 1969 to the High Court. Meanwhile in view of the pendency of these proceedings E.P No. 50/67 was closed on 29-10-1968. Thereafter the High Court allowed C.M.S.As 2 to 6 of 1969. E.P No. 40 of 1971 was filed on 9-2-1971. Sri Krishna Sarma contended that E.P No. 40/71 is not a revival of E.P No. 50/67. We are unable to agree. In E.P No. 40/71, in Column 7 it is clearly mentioned that E.P No. 50/67 was closed for statistical purposes in view of the stay granted by the District Judge and that since the High Court has allowed C.M.S.As 2 to 6 of 1969, E.P No. 50 of 1967 has to be revived. The executing court by its order dated 12-2-1971 directed the properties to be delivered by 10-3-71. In Column No. 11 in E.P No. 40 of 1971 it is clearly mentioned under the head “relief prayed for” that the decree passed by the Sub-Court, Amalapuram in O.S No. 15 of 1945 and the decree passed by the High Court in A.S Nos. 299 and 303 of 1947, etc., and the orders made by the High Court, should be perused and delivery should be enforced. Therefore, it is futile to contend that E.P No. 40 of 1971 is not a revival of E.P No. 50/67. In Venkanna v. Bangararaju (19) A.I.R 1964 Supreme Court, 1454 it was held that if a previous application is “closed” for statistical purposes, a subsequent application is only an application to continue the previous application and not a fresh application. Their Lordships also observed that an application made after 12 years from the date of the decree would be a fresh application within the meaning of Sec. 48 if the previous application was finally disposed of. It can also be seen that under Article 136 of the Limitation Act of 1963, the period of limitation for filling a fresh Execution petition is 12 years and E.P No. 40 of 1971 is in time inasmuch as it was filed within 12 years from the date of disposal of A.S No. 303 of 67 finally by the High Court.

23. In this context it is also contended by the learned counsel for the petitioners that the orders in E.P 50 of 1967 or the judgment of the Andhra Pradesh High Court in AS 303/67 after remand, are not binding on them in as much as they are not parties and therefore, they do not operate as res judicata: and the learned counsel placed reliance on several decisions. In Pingle Venkata Rama Reddy v. Kakarala Buchanna (20) (1962 II A.L.T 179) a Full Bench of this Court held that there is no question of continuing or reviving an execution petition which has been finally and properly dismissed and that the judgment debtor is not precluded from contending that a fresh execution application filed after 12 years is barred under Sec. 48. We are unable to understand as to how this decision of any assistance the petitioners. It is also observed by the Full Bench that it is a different matter if the petition was dismissed without the fault of the decree holder or without notice to the parties and in such an event, the execution petition would be treated as one pending in the eye of law. We have already held that E.P 50/67 was not dismissed because of the fault of the decree-holder. Even otherwise, E.P No. 40 of 1971 is also within time i.e within 12 years. In Suryaprakasa Rao v. Venkata Dikshitulu (21) (A.I.R 1933 Madras 844) Walsh, J. held that if a Court decides against a person in his absence a matter in execution petition of which he had not been given notice, he cannot be bound by such decision. The learned counsel relies on this decision on the ground that in E.P 50/67 the petitioners have not been made parties. We have already held that the petitioners themselves came forward and filed E.As 238 to 240 in E.P 50 of 1967 and thus became parties to the proceedings and continued to be so till the stage of the disposal of A.A.A.Os 2 to 6 of 1969 by the High Court. Therefore, this decision also is of no assistance. In Rajkishore v. Kangali (22) (A.I.R 1972 Orissa, 119) a Full Bench of the Orissa High Court dealt with the principle of res judicata and held that the judgment debtor was justified in raising the objection in as much as the court did not adjudicate whether the execution application was within time and was executable. This decision is distinguishable inasmuch as in the case on hand it has to be held that the petitioners waived all these objections at the earlier stages. Workmen C.P Trust v. Board of Trustee (23) ((1978) 3 SCC 119 : A.I.R 1978 Supreme Court 1283) is a decision which deals with the dismissal of a special leave petition. Their Lordships of the Supreme Court held thus:—

“When any matter which might and ought to have been made a ground of defence or attack in former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided”.

24. In Subrahmanyam v. Premier Bank of India (24) (A.I.R 1968 Andhra Pradesh 94) a Division Bench while considering the principles of res judicata held that where the judgment-debtors did not take a particular objection at the earlier stage, they cannot be permitted to take this plea at a subsequent stage. We are, therefore, clear in our mind that the principles of res judicata come into play and the petitioners are precluded from raising these objections.

25. The next contention is that legal representatives of defendant No. 60 were not brought on record and consequently the decree is a nullity. This objection has to be rejected outright. Nunna Bhavanamma, the legal representative of defendant. No. 60, herself filed E.A 240/67 as the legal representative of defendant No. 60 on her own volition and accord and the same was dismissed. She also preferred A.S No. 159 of 1967 which was allowed by the District Court. Against that, the decree-holder preferred A.A.A.O 4 of 1969 and a Division Bench of this court allowed the same along with A.A.A.Os 2, 3, 5 and of 1969. As already mentioned, this objection was not raised at the earlier stages. Reliance is placed on Kanchamalai v. Shahaji Rajah (25) (A.I.R 1936 Madras 205) wherein it is held that if an execution is sought against a legal representative; the decree holder must proceed under section 50 C.P.C This decision has no application because the legal representatives of defendant No. 60 themselves came on record. In Jang Bahadur v. Upper India Bank (26) (A.I.R 1928 Privy Council, 162) their Lordships held thus:—

“But before execution can proceed against the legal representative of the deceased judgment-debtor the decree-holder must get an order for substitution from the court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived; and the party who has acquiesced in the court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings”.

26. This decision provides a complete answer to the contention of the learned counsel in this regard. It is also contended that since the legal representatives of defendant No. 60 were not made parties to the execution proceedings and since it is a joint decree, it cannot be executed against the other judgment debtors inasmuch as it is a nullity so far as defendant No. 60 is concerned. This contention also has to be rejected. In E.P No. 40 of 1971 Nunna Bhavanamma the legal representative of defendant No. 60 was made a party. This apart, Order 22 Rule 12 C.P.C lays down that nothing in Rules 3, 4 and 8 of Order 22 shall apply to proceedings in execution of a decree or order. It may be mentioned here that Rules 3, 4 and 8 of Order 22 deal with the case of death of one or several of the plaintiffs or defendants. At any rate in the instant case there is no difficulty because the legal representatives of defendant No. 60 themselves came on record.

27. The next contention of the learned counsel for the petitioners is that appeals against the orders of the District Munsif, Tanuku, do not lie to the Subordinate Judge's Court and the Subordinate Judge's court erred in entertaining appeals Nos. 12 and 13 of 1972. The learned counsel relies on sec. 13 of the Civil Courts Act and contends that since the value is more than Rs. 10,000/- the appeals lie to the High Court. The objection was taken before the lower court in I.A Nos. 98 and 99 of 1975 and C.R.P Nos. 4041 and 4042 of 1977 are filed against the dismissal of these I.As The lower Court relying on section 42 C.P.C held that all the orders passed in execution of the decree shall be subject to the same rules in respect of the appeals as if the decree has been passed by the executing court. In Jambulinga v. Vadivelachari (27) A.I.R 1956 Madras, 390 a Division Bench of the Madras High Court has dealt with this question and held thus:

“It seems to us that S. 13, Madras Civil Courts Act, 3 of 1873, lays down a general provision regarding appeals from various Courts and that it is applicable ordinarily to decrees or orders passed by certain courts. Section 42, Civil Procedure Code should be considered to be a special provision and applying the maxim expressio unius est exclusio alterius it seems to us that when a general provision is accompanied by a special provision it is the special provision that should govern a case”.

28. This is a direct authority and provides a complete answer to the question raised by the learned counsel. The learned counsel could not place any provision of law or authority before us in support of his contention. He however sought to contend that the judgment of the Division Bench of the Madras High Court should be limited to the cases arising out of original jurisdiction. We see absolutely no force in this contention. The learned Judges have considered the scope of section 13 of the Civil Courts Act and sec. 42, C.P.C and held that the provisions of sec. 42 C.P.C could prevail, which is a special provision. The words “as if it had been passed” occurring in section 42 C.P.C are very significant. Therefore, A.S Nos. 12 and 13 have rightly been entertained by the Subordinate Judge, Tanuku. Lastly it is feebly contended by the learned counsel for the petitioners that the lands are under the occupation of tenants, i.e respondents 6 to 9 before the lower court, and that they are entitled for protection under the Tenancy Act. It is needless to say that they are also bound by the decree as they claim only under defendants 58 to 62. That apart, it is only after the decree was passed that these persons who are alleged to be tenants were inducted into possession of the property. Therefore, they cannot seek any protection. The court below has rightly held that the obstruction for delivery of possession caused by them is absolutely unsustainable.

29. In the result, all the civil revision petitions are dismissed with costs. In view of the several contentions raised and the time consumed in the hearing of these matters, a consolidated amount of Rs. 1000/- is fixed as Advocate's fee to be included in costs.