The Judgment of the Court was as follows:—

Derbyshire, C.J:— This is an appeal from an order of the Subordinate Judge, Fourth Court of 24-Parganas, made on October 5th, 1936, whereby in Execution Case No. 76 of 1934, the learned Judge dismissed an objection raised by the judgment-debtor against the execution of the decree.

The facts in this case are many and rather involved. In 1903 the judgment-creditors or their predecessors-in-title lent a sum of Rs. 7,000 on the security of certain land in Entally—a suburb of Calcutta and the loan was to bear interest at the rate of twelve per cent. The borrower executed a mortgage on the land and subsequently a further charge with which we are not concerned.

In 1914 the lenders sued the borrowers and asked for a decree of sale against the land which they said was mortgaged. The borrowers alleged that they had mortgaged the whole sixteen annas share of the property whereas they were only entitled to mortgage a four annas share of it and that the mortgage was invalid. The Subordinate Judge upheld this contention and decided that there was no mortgage of the property concerned. He, however, made a simple money decree for the principal lent and the interest accrued. The lenders appealed to the High Court which on June 5th, 1917, reversed the decision of the Subordinate Judge directing that an ordinary mortgage decree must be passed with accounts and, to use the words of Mr. Justice Fletcher, “fixing a date for payment within which if payment is not made the property would be brought to sale by the Court. The case must be remitted to the lower Court for the purpose of taking the account and fixing the date within which the payment must be made to the Plaintiffs.”

The Plaintiffs in the suit had asked for a mortgage decree and the sale of the property described in Schedule Ga. In paragraph 9 of their plaint they stated. “The description of the said separate 4 annas share is given in Schedule (Ga) below and at present, under the aforesaid circumstances, that is the sole mortgaged property in suit.”

On December 22nd, 1917, pursuant to the judgment of the High Court just mentioned, a preliminary decree for sale was drawn up. The property ordered to be sold was that set out in Schedule Ga. It provided that the suit be decreed and that the amount due to the Plaintiffs on account of principal, interest and costs calculated up to June 22nd, 1918, was Rs. 43,331-7-8 pies and that such amount should bear interest at the rate of six per cent till realisation. It was further provided that if the Defendants did not pay the amount into Court on or before June 22nd, 1918, the mortgaged property as set out in Schedule Ga of the plaint or a sufficient part thereof should be sold and the proceeds paid into Court and applied in the payment of what was declared due to the Plaintiffs.

On November 9th, 1918, the final decree following the preliminary decree was made. The money calculated to be due was stated to be Rs. 43,331-7-8 pies together with certain other interest at the rate of six per cent and the property directed to be sold was that stated in Schedule Ga—as in the preliminary decree.

On February 3rd, 1919, the mortgagors obtained leave from the High Court to appeal to His Majesty in Council and a stay of execution of the mortgage was granted on condition that the mortgagors gave security for the sum of Rs. 6,000. Apparently that security was not given and execution proceedings under the final decree proceeded. However, in March of 1922, an application was made by the mortgagors to the Subordinate Judge at Alipore for stay of further execution pending the decision of His Majesty in Council and such stay was granted. On July 14th, 1922, the appeal came before the Privy Council which decided against the Appellants and on August 10th, 1922, the order of His Majesty in Council concerning the appeal was published wherein it was stated that the appeal ought to be dismissed and the decree of the High Court dated June 5th, 1917, affirmed.

Thereafter, sometimes in 1925, execution proceedings to enforce the decree were started by the mortgagees in the Alipore Court. Those proceedings were opposed and on certain occasions the decisions of the Court at Alipore in favour of the mortgagees were brought on appeal to the High Court and dismissed. The execution proceedings dragged on until 1930 when the property was put up for sale and the Nazir reported that there were no bids. Apparently nothing more was done by the mortgagees until July 12th, 1934, when they again applied to the Court for execution of the decree of sale. Thereafter various objections were taken by the mortgagors. On September 7th, 1935, the Subordinate Judge made an order, overruling the objections raised by the mortgagors for the sale of the property and an appeal was brought by the present Appellant to this Court. There were various grounds set out in the memorandum of appeal. The first was: “that the executing Court ought to have held that the decree now sought to be executed was drawn up long before the order of His Majesty in Council was passed and as such was not in accordance with the said order of His Majesty in Council and cannot be executed as any such order or otherwise.” The eighth ground of objection was “that the executing Court ought to have held that the decree now sought to be executed by the decree-holders was barred by the law of limitation.” That appeal was summarily dismissed under Or. 41, r. 11 of the Code of Civil Procedure on January 17th, 1936, by a Division Bench of this Court.

Execution proceedings went on in the Alipore Court, various objections being raised and on October 5th, 1936, the present order was made overruling more objections of the mortgagors. The concluding part of the order was that the sale should be held that day—October 5th, 1936,—at 12 noon. It was stated that the sale was to take place for the sum of Rs. 85,728-5-6 pies which included the costs of the execution case. We have been told in the course of argument that the sale took place and that the mortgagees were declared to be the purchasers for the sum of Rs. 79,000 odd. We have also been informed that an application for setting aside the sale is pending. A sum of Rs. 7,000 was borrowed by the mortgagors in 1903 and not a pice has been paid either in respect of principal or interest. A case which began in 1911 is still dragging its weary way through the execution Court in 1939.

Before us it has been contended that no execution proceedings can take place, first, because the decree for sale has been superseded by reason of the decision of the Privy Council and is no longer existing and, therefore, not executable. Secondly, it has been contended that if the decree for sale is still valid and is existent, it is time-barred. In my view it is not open to the present Appellants—the mortgagors—to take those objections here in this appeal. They raised the same objections when they appealed from the decision of the Subordinate Judge, Fourth Court, of Alipore, dated 1935. Those objections which I have recited were made grounds of appeal to this Court and this Court rejected the appeal, as I have stated, on January 17th 1936. Those matters are, in my view, res judicata and cannot be reagitated here in this appeal.

A great deal of time has been taken up in contending that the decree of 1918 was non-existent or that it was time-barred. Notwithstanding the conclusion to which I have come on the question of res judicata I think it may help, though I am by no means confident, towards the final adjustment of this litigation, if I give my views upon the arguments that have been raised.

The final decree for sale was drawn up, it is true, in the Alipore Court, but it was drawn up according to the Code of Civil Procedure then in operation in 1918 pursuant to a decree of this Court which was made on June, 5th 1917. That decree for sale is or was in effect a decree of this Court. The decree of this Court was appealed against in the Privy Council which affirmed the decree of this Court. In my view by reason of the decision in Jowad Hussain v. Gendan Singh , that decree of this Court became, on its affirmance by the Privy Council, part of the order of the Privy Council as far as its legal consequences are concerned. That decree could not be executed before the Privy Council made its order on August 10th, 1922, because a stay had been granted in March of 1922 by the Subordinate Judge at Alipore. When, however on August 10th, 1922, the order of the Privy Council was made, time began to run for the execution of that decree which, I have held, became part of the Privy Council order. The time within which it could be enforced was, in my view, twelve years from August 10th, 1922, by reason of Art. 183 of the Limitation Act. These execution proceedings were started on July 12th, 1934, about one month before the expiration of the period of twelve years. They were, therefore, not barred by limitation. In my view apart altogether from the question of res judicata this appeal must fail.

In addition to the appeal we have before us a Rule which was granted at the instance of the mortgagors calling upon the mortgagees to show cause why the decision of the same Subordinate Judge given on September 21st, 1936, wherein he refused to revise the decree in the suit, should not be set aside.

The contention of the mortgagor with regard to this is that the decree does not, as far as the quantum of the property is concerned, give effect to the decision of the Privy Council. Lord Phillimore in delivering the decision of their Lordships Bhola Nath Sen v. Balaram Das (2) said:—

“Their Lordships having heard a full statement of the facts of the case and everything that could be urged by learned Counsel for the Appellant, are satisfied that the decree appealed from must stand.

There are, in fact, on final examination, but two points to be taken on behalf of the Appellant.”

The first point we are not concerned with. The judgment proceeds:—

“‘The second point taken’ (the point in question now) ‘is that the decree ought only to have been made in respect of 4 annas of the property and it has, in fact, been made against 16 annas. The answer to that is that those who say this have min-construed the decree. There is no doubt something in the language of the learned Judge of the High Court who delivered the judgment which would look as if he so thought and possibly, as against the Appellant if the Judge had so thought it might have, been said, that a decree had been passed against him in respect of any interest he might have in the 16 annas; but, however that may be, when the decree came to be carefully drawn up it is quite clear that it only affects the four annas.”

I have referred to the paper-book which was before their Lordships of the Judicial Committee when this matter was heard by them. Their Lordships had before them the plaint in the original proceedings. I have mentioned already that in the plaint the Plaintiffs asked for the sale of the property described in schedule Ga. Their Lordships had before them the decree that was made in this Court by the learned Judges which reads:—

“It is ordered and decreed that the decree of the lower Court be set aside and in lieu thereof it is hereby ordered that the case be sent back to that Court for the purpose of taking an account as to what amount is due to the Plaintiffs from the Defendants under the mortgage bond dated the 25th September, 1903 and for fixing a date within which that amount is to be paid and in the event of the Defendants failing to pay to the Plaintiffs the said sum so found due within the time fixed for bringing to sale the mortgaged properties (as mentioned in the plaint) in satisfaction of the amount so found due to the Plaintiffs.”

The preliminary decree and the final decree both bring to sale the properties mentioned in schedule Ga. The plaint itself asked for the sale of the properties mentioned in schedule Ga. It has been contended here that the properties mentioned in schedule Ga are not the same as the four annas share of the property. There is no evidence whatever in support of that contention. In my view it is quite clear that the decree for sale in question carries out the order made by this Court on June 5th, 1917, which was considered and approved by their Lordships of the Privy Council and affirmed by, them on appeal. In my opinion, on this contention the mortgagors have failed and the Rule must be discharged.

The Appellants asked for a fresh sale proclamation to be published in any new sale ordered. In my view that matter does not come within the ambit of this appeal and we make no order on it.

The result is that this appeal must be dismissed with costs—hearing-fee being assessed at fifteen gold mohurs. The Rule is discharged, but without costs.

No order is necessary on the application in the alternative under sec. 115 of the Civil Procedure Code.

Nasim Ali, J.:— I agree that this appeal should be dismissed and that the Rule should be discharged.

The objections of the Appellant to the execution of the final mortgage decree are two:—first that the decree is incapable of execution and secondly that the application for execution is barred by limitation. The arguments in support of the first objection were two-fold. First, that the final decree under execution is a nullity inasmuch as the Subordinate Judge had no jurisdiction to pass it during the pendency of the appeal against the preliminary decree; secondly that even if it was not a nullity when it was passed it ceased to exist after the preliminary decree on which it was founded was superseded by the decree of their Lordships of the Judicial Committee. The line of reasoning adopted by the Appellant in support of the first branch of the contention is this:—Or. 34, r. 5 of the Code of Civil Procedure contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of the final decree is the existence of a preliminary decree which is final and conclusive between the parties. When an appeal is preferred, it is the decree of the Appellate Court which is the final decree in the case. A final decree in a mortgage suit can therefore be passed only after the disposal of the appeal against the preliminary decree. This contention wholly overlooks Or. 41, r. 5 of the Code of Civil Procedure which provides that an appeal shall not operate as a stay of proceedings under a decree appealed from. In mortgage suits the preliminary decree is what in the Court of Chancery would have been described simply as “the decree,” the final decree corresponding to the “order on further consideration.” The further proceedings are proceedings under the preliminary decree and consist mainly of what Lord Hobhouse in the case of Syed Muzhar Husein v. Bodha Bibi , described as “subordinate enquiries.” The preliminary decree settles the rights of the parties. It contemplates a further decree to be made after the rights of the parties thus declared have been worked out by subordinate enquiries. The function of a final decree is merely to re-state and apply with precision what the preliminary decree has settled. The presentation of an appeal from the preliminary decree does not take away the jurisdiction of the Court to take further proceedings and to make a final decree. The final decree, when passed, is capable of immediate execution and the appeal against the preliminary decree does not operate as a stay of execution of the final decree. [Taleb Ali v. Abdul Aziz ]. I therefore hold that the Subordinate Judge had jurisdiction to make the final decree during the pendency of the appeal against the preliminary decree.

In support of the second branch of the contention the Appellant relied on certain observations of Banerji, J., in the case of Gajadhar Singh v. Kishen Jiwan Lal , which was considered by Viscount Dunedin in the case of Jowad Hussain v. Gendan Singh . These observations were made in connection with the question of limitation for an application for the final decree. I do not find anything in them to support the view that the final decree in a mortgage suit is wiped off after the preliminary decree has been affirmed by the Appellate Court. The Plaintiff who gets a final decree during the pendency of the appeal against the preliminary decree takes the risk of the final decree being reversed or varied if the preliminary decree is reversed or varied by the Appellate Court. But where the preliminary decree is affirmed it is difficult to find any intelligible principle on which it can be said that everything done in pursuance of that decree is wiped off. If the final decree is to be taken as destroyed as soon as the preliminary decree is affirmed by the Appellate Court, there will be no sense in the rule embodied in Or. 41, r. 5 of the Code of Civil Procedure that an appeal shall not operate as a stay of proceedings under the decree appealed from. There is a right of restitution under sec. 144 of the Code of Civil Procedure only when a decree is reversed or varied. There is no such right when a decree is affirmed. It would be a meaningless superfluity to insist that after the preliminary decree in a partition suit or a suit for accounts has been affirmed by the Appellate Court, the final decree made in accordance with the preliminary decree during the pendency of the appeal against the preliminary decree should be set aside, the parties should be relegated to the position in which they were before the final decree was made, further proceedings for a final decree started de novo and a fresh final decree should be made. Such a procedure does not benefit either of the parties.

It is true that in a mortgage suit the time for paying the mortgage money as fixed by the preliminary decree may expire before the preliminary decree is affirmed in appeal. But it is open to the Appellant to ask the Appellate Court to extend the time though the Appellate Court is not bound to extend the time. [Satindra Nath Chowdhury v. Jatindra Nath Chowdhury (6)]. In the present case the Appellant did not do so as that would have saddled him with interest at a higher rate, namely, at the bond rate for the extended period. I have not been able to discover any principle or precedent to support the position that after a preliminary decree is affirmed on appeal all further proceedings in pursuance of such preliminary decree are destroyed. The second branch of the contention therefore also fails.

There is another difficulty in the way of the Appellant so far as this point is concerned. At an earlier stage of these execution proceedings the Appellant filed a petition on the 19th December, 1934, under sec. 47 of the Code of Civil Procedure raising this identical objection along with various other objections. The Subordinate Judge by his order dated the 7th September, 1935, rejected this application and ordered the execution to proceed. An appeal to this Court against this order was dismissed under Or. 41, r. 11 of the Code of Civil Procedure. It is true that in the order of the Subordinate Judge there was no finding by the Subordinate Judge on this point. But there is nothing to show that the point was not abandoned at the time of the hearing of the application before the Subordinate Judge. At any rate, the order directing the execution to proceed necessarily included the rejection of the Appellant's objection that the decree was incapable of execution. When the Appellant appealed against the order of the Subordinate Judge to this Court he took this objection again in his memorandum of appeal. But his appeal was dismissed as has been stated above. The Appellant is therefore now precluded from raising this objection again. The first objection therefore must be overruled.

As regards the second objection the contention of the Appellant is that the present application is hit by sec. 48 of the Code of Civil Procedure as it is beyond 12 years from the date of the final decree. This argument is based on the fact that the final decree bears the date 9th November, 1918 and the present application for execution was filed on the 12th July, 1934. The learned Subordinate Judge has held that the application is not barred as it is governed by Art. 183 of the Limitation Act. The preliminary decree on which the final decree is based was affirmed by the Judicial Committee on the 10th August, 1922. If I am right in my view that the effect of the order of the Privy Council is not to destroy but to affirm the final decree also, the present application comes under Art. 183 of the Limitation Act and is not barred by limitation. Further, the Appellant is now precluded from raising this question of limitation by the general principle of res judicata as this question was raised by him in his petition of objection under sec. 47 of the Code of Civil Procedure filed by him before the Subordinate Judge on the 19th December, 1934, to which reference has already been made. It was decided against him by the Subordinate Judge and the decision of the Subordinate Judge was affirmed in appeal by this Court. The decision in the present proceedings under sec. 47 that the application is not barred by limitation is now final and binding between the parties. The second objection to the execution is also overruled.

As regards the application for revision under sec. 115 of the Code of Civil Procedure, the contention of the judgment-debtor Petitioner is that the learned Subordinate Judge should have amended the final decree in the mortgage suit by stating that only an undivided one-fourth share of schedule Ka properties as mentioned in the plaint of the mortgage suit is to be sold. The preliminary decree that has been affirmed by the Privy Council states that the properties mentioned in schedule Ga are to be sold. The plaint in the mortgage suit shows that schedule Ga represents the one-fourth share of schedule Ka properties after partition. The contention of the Petitioner is that the Ga schedule property is much in excess of the one-fourth share of schedule Ka properties. This is a question of fact and ought to have been raised when the final preliminary decree was made by the Privy Council. Further, the learned Subordinate Judge had no jurisdiction to amend the decree of the Privy Council which affirmed the decree of this Court. The order of the Subordinate Judge cannot therefore be revised under sec. 115 of the Code of Civil Procedure.

P.C