Beevor, J.:— This is an appeal against an order of Babu Raghunandan Prasad, Subordinate judge of Arrah, dated the 27th March, 1942, dismissing an application for execution of a decree on the ground that the application was barred by limitation.

The suit out of which this appeal arises was brought on the basis of a mortgage bond, dated the 13th February, 1926, against a number of persons and on the 10th August, 1937, a decree was passed in that suit the operative portion of which ran as follows:—

“That the suit be decreed in part for Rs. 1,800 together with proportionate costs and interests at the rate of 12 p.c.p.a simple from the date of the bond till the period of grace and thereafter at the rate of 6 p.c.p.a till realisation on contest against the defendant no. 11 and ex parte against the rest. The decretal amount so to be found shall be paid in three months hereof and in default the mortgaged properties as mentioned in the plaint shall be sold up to realisation of the said part decree.

For Rs. 3,700 there will be a separate money decree against those defendants who executed the bond in suit, namely the defendant nos. 1, 4 and 5 together with interest at the rate of 12 p.c.p.a from the date of the bond till the date of the suit and thereafter at the rate of 6 p.c.p.a till realisation.

If these two decrees exceed the sum of Rs. 8,000 claimed by the plaintiff an option is given to the plaintiff under the special circumstances of the suit to pay court-fee for the sum which exceeds Rs. 8,000 within one week from this date and in default so much of the amount as it might exceed Rs. 8,000 will be left out of account not out of the mortgage decree but out of the money decree.

Pleader's fee 5 p.c

and that the sum of Rs. 3,092-11-3 be paid by the defendants to the plaintiffs with interest on Rs. 1,300 at 12 p.c.p.a within three months and in case of default the plaintiff will be entitled to realize it with interest at 6 p.c.p.a by sale of the mortgaged property. Defendants do also pay to the plaintiffs Rs. 435-9-3 as costs of the suit.

Money decree is passed for Rs. 4,907-4-9 which the defendant nos. 1, 4 and 5 are to pay to the plaintiffs with interests at 6 p.c.p.a till payment besides Rs. 691-3-5 as cost of the suit.”

It will be noticed that the total of the two sums of Rs. 3,092-11-3 and Rs. 4,907-4-9 mentioned in the latter portion of this decree is exactly Rs. 8,000 and the decree is a preliminary mortgage decree for sale in respect of the former sum against all the defendants and a personal money decree for the latter sum against defendants 1, 4 and 5. A final mortgage decree for sale was passed on the 10th June, 1939, in respect of the former sum and it was conceded on behalf of the decree-holder-appellants in argument before us that in that final decree there was no mention of the money portion which was included in the decree, dated the 10th August 1937. Some time during the year 1939 the decree-holders took ‘out execution in execution of the final mortgage decree and in those execution proceedings they got the mortgaged property sold on the 3rd April, 1942. In the meantime the decree-holders filed on the 2nd September, 1941, an application for execution of the money portion of the decree, dated the 10th August, 1937. This is the application which has been held by the lower Court to be barred by limitation.

This application, dated the 2nd September, 1941, was filed considerably more than three years from the date of the decree of the 10th August, 1937, and it has not been suggested that between the passing of that decree and the date of that application there was any application for execution or for any step in aid of execution of the decree, dated the 10th, August, 1937, other than the proceedings for obtaining final mortgage decree and the proceedings in execution of that final mortgage decree whereby the same mortgaged properties were brought to sale.

The main contention of the decree-holder-appellants has been that there was in reality a single decree or order passed jointly against all the defendants, and, therefore, the application for execution of the final mortgage decree for sale will take effect against defendants 1, 4 and 5 so far as the money decree or money portion of the decree of 1937 is concerned in accordance with the last portion of explanation 1 to Article 182 of the Limitation Act.

At first sight I should have thought that this appeal could have been dismissed at once on the simple ground that the application for execution now in question, dated the 2nd September, 1941, was an application for execution of the decree, dated the 10th August, 1937, and that neither the proceedings to obtain a final mortgage decree for sale on the basis of a portion of that decree nor the proceedings in execution of the final mortgage decree, dated the 10th June, 1939, could be treated as an application to take any step in aid of execution of the decree, dated the 10th August, 1937, itself. In view, however, of the rulings cited before the lower Court and before us, it is clear that the matter cannot properly be determined so summarily.

Four cases were cited before the learned Subordinate Judge and mentioned in his judgment: Puttayya v. Puttannayya, Rambrich Rai v. Deo Tiwary, Bishun Chand v. Abhay Chand and Salahuddin v. Imamuddin. The first of these cases was a case in which there was a decree passed jointly against defendants 9 and 10 for recovery of possession of certain property. It further directed defendants 1 to 8 to pay a certain sum and defendant no. 9 to pay another sum. Therein it was held that there was a decree passed jointly against defendants 9 and 10 regarding recovery of possession and that, therefore, the application for execution against defendant no. 9 kept the decree alive as against defendant no. 10 in accordance with the latter portion of explanation 1 to Article 182 of the Limitation Act. That case gives little or no guidance as to the principles to be applied in the present case, and the arguments, before us have been concerned chiefly with the validity and effect of the other three cases cited before the learned Subordinate Judge.

The learned Subordinate Judge held that the decision of the Allahabad High Court in Rambrich Rai v. Deo Tiwary was a similar case to the present one and that authority would support the case of the decree-holder. He noted that case appeared to have been quoted with approval in Bishun Chand v. Abhay Chand but he came to the conclusion that the facts of that Patna case were quite different from the facts of the present case, on the ground that the one governing note of the decree in that Patna case was that the main relief was realisation of the mortgage dues which was not the case in the present instance. He further stated that the case of Salahuddin v. Imamuddin may be said to be a similar case to the present, and he rightly stated that he was bound to follow the ruling of this Court in preference to the ruling of any other High Court, and after this discussion of the cases he held that the application was barred by limitation.

The case of Salahuddin v. Imamnddin was a case in which the Court passed a preliminary decree for partition and with it a decree for costs to be paid by the judgment-debtor to the decree-holder. The order for costs being a separately executable order, it was held that execution of it must be taken within three years of the date of the order. It was stated, however, that it was open to the decree-holder-plaintiff to ask the Court to incorporate the previous order for costs in the final decree although execution of such an order independently is barred by limitation. In the judgment of Khaja Mohammad Noor, J., in that case it was laid down that a decree may be partly preliminary and partly final, and so far as it is final it must be executed within the time prescribed in Article 182, Limitation Act. Prima facie this principle would appear to apply to all cases of decrees which are partly preliminary and partly final, though in that case the preliminary portion of the decree was for partition whereas in the present case it is a preliminary mortgage decree for sale. The fact that admittedly the final decree prepared in this case did not mention the money portion of the decree of 1937 prevents the decree-holder-appellants from obtaining any assistance from the remarks made in that case about the possible inclusion of such items in the final decree.

It has, however, been strenuously urged that the other two cases cited before the Subordinate Judge show that the principle laid down in the Patna case of Salahuddin cannot be applied, to the circumstances of the present case. I must, therefore, consider those cases.

In the Allahabad case [Ram Birich Rai v. Deo Tiwari] in a suit against the members of a joint Hindu family based on a mortgage of the family property it was found that a portion only of the mortgage debt was incurred for legal necessity. As to such portion the usual mortgage decree was, passed against all the defendants. Simultaneously a simple money decree for the balance was passed against the two executant of the bond in suit including Ram Birich Rai. Within three years of that decree that portion of the decree which related to the family property was made final and execution was taken out and the property was sold. Again within three years of the date of the application for execution by sale of the family property an application was made to execute the simple money decree against Ram Birich Rai by arresting him. It was held that the application was within time. The facts of that case are remarkably similar to the facts of the present case and no reasonable ground for distinguishing that case from the present case has been suggested. It follows, therefore, that if that case was correctly decided this appeal should be allowed. The Allahabad case, however; has been assailed on behalf of the respondents as incorrectly decided. That decision of the Allahabad High Court is not binding on us, but the case of Bishun Chand v. Abhay Chand in which that Allahabad decision was referred to with approval, does bind us; and it is, therefore, necessary to consider carefully exactly what was decided in the case reported as Bishun Chand v. Abhay Chand.

The statement of facts given at the beginning of the judgment of Foster, J. in that case is as follows:—

“The appellant holds a mortgage-decree for Rs. 35,990-10-0, Part of this sum has been realized by sale of Mauza Balbhadrapur Darihat, and he is now making a second application for execution for realization of Rs. 715-3-6 from one of the judgment-debtors, Abhoy Kumar Chand, on the basis of the terms of the same decree. The date of the final decree, which was passed on appeal in the Privy Council, was the 23rd November, 1918. The first application, namely, that for the sale of Balbhadrapur Darihat was made on the 14th December, 1918, and the execution proceeded through the stages of sale proclamation, sale and delivery of possession in the course of the period 14th December, 1918, to the 1st December, 1919. The present application for execution in respect of the minor relief granted in the mortgage-decree, namely, for realization of Rs. 715-3-6 from Abhoy Kumar, has been found by the Subordinate Judge of Shahabad to be barred by limitation.”

The only ground considered in the case for holding that the application for realisation of Rs. 715-3-6 was barred by limitation was that the previous application for execution, which did not include any relief sought against Abhoy Kumar, could not give a fresh starting point for limitation. Foster, J. stated that it would appear that the Subordinate Judge regarded the whole decree as in form one but in reality two decrees—a mortgage decree against the defendants in respect of the mortgaged property” Darihat and a money decree for Rs. 715-3-6 against Abhoy Kumar—and considered that those two decrees were several and independent though included in one document. After discussing the various arguments, Foster, J. made his findings as follows:—

“It appears to me that the main relief, the realization 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 realization.

The unity of the decree, therefore, consists in the fact that the sum of mortgage-money and the sources of realization are indicated, these sources are interdependent because both, arise out of the mortgage and because the mortgagee decree-holder has the option to follow one or the other in execution.”

There appear to me to be several features to distinguish the case of Bishun Chand v. Abhoy Chand from the facts of the present case:—:

(1) In that case it appears that there was no question of executing any preliminary decree. Everything of which the decree-holders sought execution was included in the final decree.

(2) The mortgage decree for Rs. 35,990-10-0 included the sum of Rs. 715-3-6 which the decree-holders sought to realise from Abhoy Kumar Chand on a second application. This is clearly shown by the statement of Foster, J. at page 279 of the report: “But it is clear that if Rs. 715-3-6 had been at once realized from Abhoy Kumar, the mortgage-debt would be pro tanto reduced.”

(3) It was correctly stated in the judgment of Foster, J. that the sum of the mortgage money and the sources of realisation were indicated. In other words, everything to be realised under the decree was covered by the mortgage security. In the present case the same appellants are now seeking to realise from defendants 1, 4 and 5 what was admittedly not covered by the mortgage security though the liability for that sum was incurred by those defendants by reason of the very bond which created the mortgaged security.

(4) It was clearly stated in the actual decree in that case, as mentioned at page 278 of the report, that no person of the defendants was liable under the decree; whereas in the present case the decree of 1937 admittedly created a personal liability in defendants 1, 4 and 5.

It is clear that the decision in Bishun Chand v. Abhoy Chandi did not directly decide anything regarding the execution of a decree which was partly preliminary and partly final or regarding the execution of a decree creating a personal liability as well as a liability under a mortgage decree for sale.

It is true that at page 280 of the report in the case of Bishun Chand v. Abhoy Chand Foster, J. stated: “Mr; Bose at the last moment discovered a case which I consider supports his case to a very considerable extent [Ram Brichh Rai v. Deo Tewari.” He then went on to consider the case of Ram Brichh Rai. This passage in the judgment, however, follows after findings of Foster, J. which I have already quoted, and it is clear that he did not base his decision on that case at all though he considered that it supported his decision. There is, therefore, nothing in the decision of Bishun Chand v. Abhoy Chand which will render the decision of the Allahabad High Court in Ram Brichh Rai, binding on us.

Before leaving the case of Bishun Chand v. Abhoy Chand I may quote one passage in the judgment on which the appellants rely:

“From the first there was Darihat available as a source of realization; but the other security, Shiupur, had been greatly impaired, and in its place stood Rs. 715-3-6 in the hands of the Collector; subsequently, in the hands of Abhoy Kumar. Against the latter property the remedy was immediately executable, but against Darihat execution was delayed by the six months' period of grace.”

On the basis of this passage it has been urged that even though the decree included one relief for which execution could be taken out immediately and another relief for execution on which a delay of six months was imposed by the period of grace, the decree was held to be one so that an application for execution of one part of the decree would save limitation for an application for execution in respect of the other. I do not, however, think that this passage represents a direct finding of Foster, J. because it is preceded by a sentence which runs as follows: “Now, if this construction of the decree is correct, the mortgagee was given as decree-holder the right to realize the mortgage dues from certain properties affected by the mortgage lien.”; and the passage in question is immediately followed by the words “I do not admit that there is any importance in this distinction, which only affects the method of realization”. I think, therefore, that in this passage Foster, J. was merely working out the logical effect of a hypothesis which he took from the argument of counsel without accepting that hypothesis as necessarily correct.

In the case of Ram Brichh Rai v. Deo Tiwary the learned Judges after mentioning that the lower Court had passed an ordinary mortgage decree against all the defendants for that portion of money lent which was found to have been required for legal necessity and a simple money decree against Ram Brichh Rai and the other executant for the balance of the money lent continued as follows:—

“Admittedly within three years of that decree that portion of the decree which related to the family property was made final, and execution was taken out and the property was sold. Admittedly again, within three years of the date of the application for execution by sale of the family property this application was made to execute the simple money decree against Ram Brichh Rai by arresting him. Ram Brichh Rai objected on the ground that the decree had become time-barred as against him. This objection was overruled by both the courts; hence this appeal.”

They then continued:—

“It is strenuously argued by Mr. Ishaq Khan that this decree really was two decrees, although written on one piece of paper, and it was argued that execution of the mortgage decree could not keep alive the simple money decree against the appellant;”

In this sentence the words “this decree” must refer to the decree which included a preliminary mortgage decree against all the defendants and a personal money decree against two defendants. It was not, however, this mortgage decree which was executed. No execution of a preliminary mortgage decree for sale can be obtained. A final mortgage decree must first be obtained on the basis of the preliminary decree and then the final mortgage decree is executed. Their Lordships went on to distinguish the case of Dhirendra Nath Sarkar v. Nischintapore Company and I agree with them that case was clearly distinguishable. Finally their Lordships formulated their own conclusions in the following. Words:—

“In this case the 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, and this second application having being made within three years of the first application in which these persons were also parties, keeps the decree alive.”

In this passage the words “the mortgage money” seem to me to have been used very loosely. It is true, that the personal liability for which a personal money decree was passed against Ram Brichh Rai and one other was incurred on the basis of the very bond which created the liability of all the defendants to have a mortgage decree passed against them. I think, however, that the words “the mortgage money” should be confined to the debt which is covered by the mortgage security, and in this sense they do not cover that debt or portion of the debt for which a personal money decree was passed against Ram Brichh Rai and one other defendant. The second sentence in the passage just quoted from their Lordships' judgment seems to assume that both of the applications mentioned therein were applications for execution of the same decree, but the first application was actually an application for execution of the final mortgage decree and in view of the sense in which their Lordships used the words “the mortgage money” it seems clear that when they stated “this was really one decree for the whole of the mortgage money” they were referring not to the final mortgage decree but to the earlier decree which included both a preliminary mortgage decree for sale against all the defendants and a personal money decree for a different sum against two defendants. They were, therefore, under a misapprehension in assuming that the two applications had been made for execution of the same decree. I, therefore, consider that the case of Ram Brichh Rai v. Deo Tiwari was wrongly decided.

As a result of this conclusion I hold that the learned Subordinate Judge was right in applying to the facts of the present case the general principle laid down by this Court in Salahuddin v. Imamuddin. The appeal, therefore, fails and is dismissed with costs.

Varma, J.:— I agree.

H.R.K

Appeal dismissed.