JUDGMENT

P.V. Rajamannar, J.

1. This appeal arises out of an order passed by the learned District Judge of South Arcot in proceedings in execution of a mortgage decree in O.S. No. 23 of 1928, on the file of his Court. A preliminary decree was passed on 4th May, 1929 and the defendants were given three months time to pay, that is, till 4th August, 1929. The 8th defendant who is the appellant before us was a puisne mortgagee and a party to the suit as such. The preliminary decree was for a sum of Rs. 6,905-13-0. The 8th defendant (the appellant) preferred an appeal to the High Court with regard to the claim for interest and that appeal (A.S. No. 175 of 1930) was allowed by this Court on 26th November, 1934. The result was a reduction of the amount payable to Rs. 6,112-8-2. Pending appeal as further proceedings in suit had not been stayed, the trial Court passed a final decree on 23rd September, 1933, on the basis of the preliminary decree passed by it on 4th May, 1929. After the decision of the High Court in A.S. No. 175 of 1930, the decree-holder filed an execution petition on 23rd September, 1936 and again another petition in 1939 and finally on 31st March, 1942, he filed E.P. No. 52 of 1942 for further proceedings in execution by bringing the mortgaged properties to sale. Along with the execution application, he filed a miscellaneous application No. 85 of 1943 for an amendment of the execution petition by substituting in columns 8 and 11 the amount payable according to the preliminary decree as modified by the High Court in place of the amount fixed by the preliminary decree of the trial Court. The learned District Judge allowed both the applications and adjourned the execution petition for further steps. The present appeal purports to be filed against the order in M.P. No. 85 of 1943.

2. A preliminary objection was taken on behalf of the respondents that no appeal lay against the order in the miscellaneous petition. We do not consider that there is any substance in this objection. It has been held by this Court over and over again that an order in execution proceedings deciding any dispute between the parties affecting substantive rights can form the subject-matter of an appeal under Sections 47 and 96 of the Civil Procedure Code. In this case the order did decide that the decree-holder was entitled to proceed with the execution of his decree. The present appeal can be understood to be an appeal against the order allowing the decree-holder to proceed with the execution in which case an appeal with certainly lie. We overrule the preliminary objection.

3. The learned advocate for the appellant contended that the decree-holder was not entitled to proceed to execute his decree because the preliminary decree passed by the trial Court in 1929 was varied by the High Court in 1934 and subsequent to the date of the High Court decree there was neither a fresh final decree nor a modification of the original decree passed by the trial Court in 1933. According to him the result of this omission on the part of the decree-holder to pursue either of the two courses is to deprive him completely of all rights under the final decree of 1933. For this position he relied mainly on the decision of a Bench of this Court reported in Balakrishnayya v. Linga Rao MANU/TN/0355/1942 : AIR1943Mad449 . In that case the suit was instituted by a mortgagee for the balance due on a mortgage executed in his favour by the husband of the first defendant in the suit. There were however on the date of the institution of the suit, numerous other defendants in possession of portions of the mortgaged properties under alienations effected subsequent to the mortgage. The trial Court passed a preliminary decree in which it exonerated the fourth defendant from the decree. The plaintiff preferred an appeal to the High Court and the High Court on 8th May, 1934, modified the decree of the lower Court in certain particulars. Inter alia the High Court set aside the dismissal of the suit as against the fourth defendant and granted a decree to the plaintiff against the properties in possession of the fourth defendant also and provided for the payment of the value of improvements effected by him. While the appeal was pending in the High Court, the decree-holder applied to the trial Court and obtained a final decree for sale on 3rd October, 1927. After the decree of the High Court, the decree-holder filed an execution petition and it appeared from the columns therein that the date of the decree which he was seeking to execute was given as the date of the decree of the High Court in the appeal against the preliminary decree. The learned Judges, Krishnaswami Aiyangar and Kunhi Raman, JJ., held that it was difficult to maintain that the decree of the High Court can be regarded as itself a final decree capable of execution. They pointed out that the contents of the columns of the execution petition suggested that what the decree-holder was seeking to execute was the decree of the High Court. This decision which certainly can, be justified on the facts cannot help the appellant here. In the present case, admittedly what the decree-holder was seeking to execute was the final decree. No doubt there are observations in the judgment of Krishnaswami Aiyangar, J., which appear to suggest that in a case where the appellate Court modifies in any way a preliminary decree passed by the trial Court and pending appeal a final decree has been passed by the trial Court, it might be necessary for the decree holder either to apply for a fresh final decree or to have the final decree already passed suitably amended by incorporating the modifications. But the learned Judges did not decide this point as they thought it was not necessary. They also naturally did not proceed to discuss the further question that even assuming some modification had necessarily to be incorporated in the final decree already passed, what was the course indicated by the Code and if any questions of limitation would arise in respect of an application on that behalf. But the ratio decidendi of the case before them was, as we understand it, that the decree-holder therein was not purporting to execute the final decree which had been passed by the trial Court but the preliminary decree as modified by the High Court. This, of course, he was not entitled to do and this is not what the decree-holder in the present case is seeking to do. The decision of the Full Bench of the Allahabad High Court in Gajadhar Singh v. Kishan Jiwan Lal MANU/UP/0073/1917 : I.L.R. (1917) All. 641 has no relevancy for the present discussion because in that case there was no final decree obtained in pursuance of the preliminary decree passed by the trial Court. There was an appeal from the preliminary decree and the question was when time began to run for an application to obtain a final decree. Their Lordships held that the starting point of limitation would be the date of the appellate decree and not the date of the decree passed by the trial Court.

4. We consider that the present appeal has to be decided by an application of the principle underlying the decision of another Bench of this Court to which one of us was a party in Veerankutty v. Koyakutty MANU/TN/0065/1939 : AIR1939Mad735 . In that case there was a preliminary decree in a mortgage suit passed by the trial Court on 21st July, 1925. There was an appeal therefrom, but pending the appeal a final decree for sale was passed on 9th November, 1925. The appeal against the preliminary decree was dismissed on 16th March, 1927. On 15th March, 1930, the decree-holder applied for execution of the final decree passed in 1925. Two objections were taken. One was that the execution application was barred by the law of limitation as it had been filed more than three years after the passing of the final decree. This objection was overruled and a consideration of this objection need not detain us as it does, not arise in this case. The other objection was that the final decree already passed was not executable and that an application for a fresh final decree or an amendment of the original decree was necessary before the decree-holder could proceed with the execution. This objection was also overruled. The learned Judges distinguished the ruling of the Judicial Committee in Jowad Hussain v. Gendan Singh MANU/PR/0110/1926 : (1926) 51 M.L.J. 781 : L.R. 53 IndAp 197 : I.L.R. 6 Pat. 24 (P.C.) which affirmed the proposition laid down in Gajadhar Singh v. Kishan Jiwan Lal MANU/UP/0073/1917 : I.L.R. (1917) All. 641 on the ground that the question which fell to be considered was not under consideration in those cases and say:

The fact that an appeal was preferred against the preliminary decree did not prevent the Court from passing the final decree.... That decree remains binding and in full force until set aside. The preliminary decree was confirmed on appeal and therefore did not affect the validity of the final decree which had been passed.

The learned advocate for the appellant sought to distinguish this decision on the ground that it dealt with a case of the affirmance of the trial Court's decree by the appellate Court and a different rule should obtain when the appellate Court modifies to any extent the preliminary decree passed by the trial Court. We fail to see any ground for making this distinction. On principle we do not see why, if in spite of the fact that certain modifications would be perforce necessary to be made by reason over of the affirmance by the appellate Court of the preliminary decree passed by the trial Court, such as for instance with regard to the costs of the appellate Court, the old decree could be executed, it should be different when the modifications are in respect of other particulars such as the amount payable, or the parties or the properties against whom the decree should run. It should not be overlooked that the real object of a final decree for sale under Order 34,. Rule 5 of the Civil Procedure Code is to give a direction that the mortgaged property or sufficient part thereof should be sold for the purpose of realising the amount due to the mortgagee. The final decree itself does not fix the amount payable. Nor does it specify the party and properties against which the decree has to be put into execution. All these things are done by the preliminary decree. The form given in Appendix D to the Code of Civil Procedure for a final decree for sale is in these terms:

Upon reading the preliminary decree passed in this suit on the day of and further orders (if any) dated the day of and the application of the plaintiff dated the day of for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage; It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

If this function of a final decree for sale is borne in mind it becomes clear that on principle there ought not to be any distinction between a case of the affirmance and a case of variation of the preliminary decree by an appellate Court. The final decree passed in the case, if it was passed before the disposal of the appeal against the preliminary decree, would, in our opinion, automatically operate on the preliminary decree as affected by the decision of the appellate Court. It might be affected to a greater or lesser degree. The alterations which may be necessary if they have to be made formally in the final decree already passed, would be practically the same whether the appellate decree is one of affirmance or of variation. In fact the words preliminary decree passed in this suit which occur in any final decree for sale ought to be understood to mean the preliminary decree as affected by any appellate decision in cases where the preliminary decree is the subject of an appeal. So read, we do not see any difficulty in holding that whether the preliminary decree is affirmed in toto or is varied to any extent or in any particular, the final decree could be executed with such modifications as may be necessary in the circumstances which might as well be made in the execution petition filed after the appellate decree.

5. Considered from another aspect too, we think that there is no substance in the objection by the appellant. It can be said that it is the duty of the trial Court which passes the final decree to carry, out such modifications as may be necessary by reason of the decision of an appellate Court in an appeal against the preliminary decree when its attention is drawn to the necessity for such alteration by the decree-holder. We do not think that so long as the decree itself has been kept alive, there can be a bar of limitation to an application of this sort. Such application really calls upon the Court to carry out modifications which in law automatically take place in the final decree already passed before the decree of the appellate Court. No authority has been cited to us which lays down that an application of this sort should be filed within three years from the date of the decree of the appellate Court. Rankin, C.J., pointed out in Talebali v. Abdul Aziz I.L.R. (1929) Cal. 1013 that the appellate Court when setting aside or varying the preliminary decree can and should give directions for setting aside or varying the final decree if the existence of the final decree is brought to its notice as in a11 cases it should be. This clearly suggests that there is nothing in the Code which makes it incumbent on a decree-holder to make an application which would be governed by Article 181 of Schedule I to the Limitation Act to obtain any fresh relief. The relief must be deemed to have been granted by the appellate Court itself in the appeal against the preliminary decree and the fact that appropriate modifications have to be made in the final decree already passed as a result of the decision of the appellate Court cannot arm the judgment debtor with an objection that any formal application for such modification is barred by time if made after three years from the date of the decree of the appellate Court. In our view the decision of the learned District Judge was right and the appeal is dismissed with costs of respondents 1 to 3.