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Koshi, C.J.—This appeal arises out of execution proceedings. The only question in the appeal was whether or not the execution of a money decree in favour of the father of Respondent 1 - of which Respondent 2 obtained an assignment - was barred by limitation. When the appeal came up for hearing before a Division Bench that Bench passed the following order:
In view of the importance of the question of law involved in the case this will be placed before a Full Bench for hearing and disposal.
The case has accordingly been placed before this Full Bench.
The Appellants are the legal heirs of Defendant 1 in the suit. He was the karnavan of a marumakkathayam tarwad. He had executed a promissory note in favour of the father of Respondent 1. A suit was brought on foot of it before the Nagercoil District Court in O.S. 105 of 1103 claiming relief both against Defendant 1 and against his tarwad. While Defendant 1 remained ex parte the other members of the tarwad impleaded in the suit as Defendant 2 to 8 contested it. Their contention was that the debt was not incurred for tarwad necessity and that the tarwad could not therefore, be made liable for the debt. As Defendant 1 did not enter appearance or contest the suit, the Plaintiff applied that a preliminary decree be passed against him. This was on the date of the first hearing. The Court acceded to that request and gave such a decree on 7-8-1104. That decree stated that it was only a preliminary decree and that the question whether the tarwad was liable for the debt will be decided later on. The final decree was passed on 2-4-1106 and by it the suit was dismissed with costs as against the tarwad. The Plaintiff preferred an appeal against the final decree to the High Court in -''A.S. 13/1107, but the High Court dismissed the appeal. This was on 10-2-1114.
The execution petition out of which this appeal arises was filed on 26-5-1121. It sought to enforce the personal relief granted against Defendant 1 as per the preliminary decree dated 7-8-1104. Defendant 1 had died whiles -''A.S. No. 13 of 1107'', was pending in the High Court. His legal heirs who were brought on record in his place raised the objection that the execution was barred by limitation. The execution Court overruled the objection basing its decision on - AIR 1932 165 (Privy Council) The legal heirs of Defendant 1 have hence preferred this appeal.
Mr. N.K. Narayana Pillai, learned Counsel appearing for the Appellants conceded before us that in case the period of limitation for execution commenced only from the date of the High Court''s decree, viz., 10-2-1114, the decision appealed from will have to be confirmed. The decree-holder had made timely applications to keep the decree alive. The point sought to be made out in the appeal, however, was that the relief the Court granted to the Plaintiff in the suit which was only as against Defendant 1 was granted so early as 7-8-1104 and that date furnished the starting point for limitation for execution as against Defendant 1 or his legal heirs. It was contended that the final decree the trial Court passed on 2-4-1108 or the High Court''s decree dated 10-2-1114 had not anything to do with the personal relief granted against Defendant 1 as per the decree, (preliminary) dated 7-8-1104. According to counsel that was a complete and self-contained decree and also final so far as Defendant 1 was concerned. The argument raised hence was that the applicatory provision of the Limitation Act was Clause 1 in Col. 3 of Article 132 (Clause 1 in Col. 3 of Article 166, Travancore Limitation Act). When read along with the word occurring in columns 1 and 2, the said clause provides that the time for an application for the execution of a decree shall be three years from the date of the decree.
The lower Court''s view which Respondent 2 sought to maintain before us was that Clause 2 in col. 3 of Article 182 applied to the case. Clause 2 so far as relevant together with the words in columns 1 and 2 provides that where there has been an appeal the time for an application for the execution of a decree shall be three years: from the date of the final decree of the appellate Court. The interpretation of the words "where there has been an appeal" occurring in col. 3 of Article 182 is a vexed question and much legal literature has grown around it. The recent decision of the Supreme Court in - Bhawanipore Banking Corporation, Ltd. Vs. Gouri Shankar Sharma, , has arrested the tendency to give a benefical interpretation to those words to extend them to an appeal from any interlocutory order in the suit or an appeal in any collateral proceeding. See - Rameshwar Prasad Sahu Vs. Parmeshwar Prasad Sahu and Others, ; - Sivaramachari Vs. Bayya Anjaneya Chetty, and -''Pratap Mai v. I.T. Officer Jodhpur Division'' AIR 1951 Raj 150 (2) (E). In the Supreme Court case their Lordships said that the words "where there has been an appeal" in Clause 2 of col. 3 of Article 182 must be read with words in col. 1 of that Article viz., "for the execution of a decree or order of any civil Court......" and that however broadly those words may be construed they could not be held
"to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection withi the decree under execution.
In -''Lakshmana Perumal v. Sudalamuthu Nadar'' 1950 Trav. CLR 81 (F), this Court expressed the view that the appeal referred to in Clause 2 of Article 166 col. 3 is the appeal against the decree or order sought to be executed and not an appeal against an order in any collateral proceeding relating to that decree or order. This accords with the view expressed by the Supreme Court. Their pronouncement reduces the point for our decision to the question whether the appeal from the decree dated 2-4-1106 has any direct or immediate connection with the decree dated 7-8-1104 granting personal relief against Defendant 1.
The procedure the trial Court adopted in the case to pass a preliminary decree against the executant of the promissory note and thereafter to proceed with the enquiry as to whether the tarwad could be made liable was indeed an unusual one. On 7-8-1104 when the Court gave a decre against Defendant 1 the position was that out of the eight Defendants in the suit Defendants 2 to 8 had entered appearance but Defendant 1 had not. Order 9, Rule 11, CPC prescribes the procedure to be adopted when such a situation arises. What the rules states is this:
Where there are more Defendants than one, & one or more of them appear & the Ors. do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the Defendants who do not appear.
It is in (sic)violation of this provision that the Court proceeded to pass a decree against Defendant 11 No doubt there is nothing to preclude the Court from passing a preliminary, decree in cases not expressly provided for in the Code. See the cases noted under foot-note (x) on page 8 of Mulla''s CPC (Eleventh Edition, 1941) and CPC by Chitaley and Annaji Rao (Fifth Edition 1951) pp. 74-77. It is however open to question whether that could be done in transgression of an express provision in the Code. Obviously Rule 6 of Order 12 or Rule 2 of Order 15 was inapplicable. Defendant 1 had not made any admission and the Court was not entitled to assume that Defendant 1 was not at issue with the Plaintiff on any question of fact or law without complying with the provisions of Order 10, Rule 1. - Ram Rakhan and Another Vs. Mahant Govind Das and Another, . However it is too late in the day to examine the legality or the propriety of the trial Court''s action in having passed a decree against Defendant and then proceeded with the enquiry regarding the tarwad''s liability. The Court however professed to pass only a preliminary or an interlocutory decree stating that the final decree will be passed after the issues raised in the suit were tried. The final judgment while dismissing the suit as against the tarwad contains an affirmation of the decree passed earlier against Defendant 1. The decree as drawn up does not however refer to any such affirmation. That is a defect which the Court could rectify u/s 152 CPC even ''suo motu''.
In this view of the matter without more the lower Court''s decision can and has to be held to be right. No doubt the appeal related on to the refusal to grant relief against the tarwad but it is settled k law that to attract the application of Clause 2 in col. 3 of Article 182 it is not necessary that the appeal should be against the whole decree or that all the parties to the suit should be before the appellate Court. -''Nagendra Nath v. Suresh (A)''; -''Govindan v. Damodaran'' AIR 1952 TC 269 (H), and the decisions referred to in the latter case.
Learned Counsel for the Appellants did ? not challenge the position that the appeal preferred by the Plaintiff would have made Clause 2 of col. 3 applicable to the case had the personal decree against Defendant 1 been made when the suit was dismissed against the tarwad. His point was that there was no warrant for the view that the personal decree against Defendant 1 formed part of the final decree and that this is a case where two decrees were passed in one and the same suit on two different dates and that to such a case simply because an appeal happened to be preferred against the second decree, Clause 2 of col. 3 of Article 182 did not become applicable when execution of the earlier decree is sought. An observational Sir John Beaumont, C.J., made in - D.M. Jacinto Vs. J.D.B. Fernandez, was relied upon for the position. We shall refer to that case in due course.
As the two decrees were passed on two 1 different dates Mr. Narayana Pillai contended that even if the final decree had incorporated into it the earlier one against Defendant 1 or the process of incorporation is done now that will not affect the point of limitation. Reference was made in this connection to -''Umesh Chandra v. Akrur Chandra'' AIR 1919 Cal 253 (2) (J). In that case a decree was first passed ex parte against three brOrs. . Afterwards one of them got the suit reopened as against him on the ground that he was not duly served with the summons. At the re-hearing the suit was dismissed as against him and the revised judgment went on to say that it is decreed ex parte against the other Defendants. The question arose whether the period of limitation for the execution of the decree against them commenced from the date of the original ex parte decree or from the date of the revised decree. The decision was that the former date furnished the starting point. The judgment shows that the revised decree granting relief against two Defendants was passed without notice to them of the application for rehearing or of the proceedings taken on and after the order for rehearing. As they were not parties to the subsequent proceedings the revised decree was held to be a nullity against them. Hence the decision that the period of limitation began to run from the date of the first ex parte decree. Here the position is different. Defendant 1 was on the record when the final decree was passed as also in the appeal proceedings. When he died pending the appeal the present Appellants were impleaded as his legal heirs.
Whether an actual incorporation of the earlier decree in the later one could be done now or not from the juristic stand point it has to be held that the latter decree includes with- in its fold the preliminary decree also. In -''Sivaramachari v. Anjaneya'', Rajamannar C.J, is seen to have enunciated the rule thus:
Though the terminology gives an impression that there are two decrees, I think the correct legal position is that there is only one decree in a suit in the sense that it is the expression of an adjudication determining the rights of the parties with regard to all the matters in controversy- in the suit. A preliminary decree is merely a stage in working out the rights of parties which are finally determined by the final decree.
This view would seem to be founded on the definition of the term "decree" in Section. 2(2), CPC In the eye of the law a decree is final only when it completely disposes of the suit. As such even though there is in this case an earlier decree on 7-8-1104 it becomes final only with the decree passed on 2-4-1106. That the decree as drawn up bears two distinct dates is therefore really of no consequence. That one circumstance of distinct dates for the two decrees was the sole ground on which -''Nagendra Nath v. Suresh (A)'', and the train of cases preceding and succeeding it were sought to be distinguished from the present, case by the Appellant''s learned Counsel. He would have it that execution is asked for of the decree made on 7-8-1104 and that Clause 2 of col. 3 of Article 182 could be applied only if there had been an appeal from that decree as the words "where there has been an appeal" must naturally refer to an appeal directly from the decree sought to be executed.
In this context it is instructive to recall what Bhashyam Ayyangar, J. said in -''Krist- nama Chariar v. Mangammal'' 26 Mad 91 (F.B.) (K), with reference to the question whether there can be two final decrees in a suit, one by the trial Court and the other by the appellate Court. The application of Clause 2 of col. 3 of Article 182 (then Article 179) to a case where there has been an appeal only from a part of the decree was the point under discussion in that case. After stating that Clause 2 of the third column of Article 179 distinctly provides that where there has been an appeal without making any distinction as to whether the appeal is against the whole decree or only against a part thereof - the period of limitation for execution of the decree begins to run from the date of the final decree of the appellate Court, that otherwise it will generally lead to confusion - and in certain classes of cases even to anomalies - if limitation is to be reckoned from different starting points in respect of the execution of different parts of the same decree, and that the Legislature therefore fixed, one and the same starting point, the learned Judge went on to say thus:
In my opinion this is sound from a juridical point of view. When an appeal is preferred from a decree of a Court of First instance, the suit is continued in the Court of Appeal and re-heard either in whole or in part according as the whole suit is litigated again in the Court of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of First instance. The mere fact that a matter is litigated both in the Court of First instance and again, though, only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal. There cannot be two final decrees in such a. suit, one by the Court of First instance and the other by the Court of Appeal. Section 577, Code of Civil Procedure, therefore provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against and the confirmation is not limited to the portion appealed against. If such appeal be allowed, ''the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed as to the rest, i.e" the portion not appealed against. The portion appealed against and litigated in the Court of appeal is varied or confirmed according as the objection taken, in the Court of Appeal, to such part of the decree, prevails or fails. The rest of the decree is confirmed because no objection is raised thereto by the party concerned and it is not the function of a Court of Appeal, as distinguished from a Court of Revision, to give relief to any party who has not applied to it in the form and within the time prescribed for appeal.
These passages and certain other portions in the judgment of Bhashyam Ayyangar J. have been relied upon by Viswanatha Sastri J. in - ''Sivarramachari v. Anjaneva'', and that learned Judge said:
Where however an appeal is preferred from a decree, the Court of appeal is really seized of the whole suit and. has the powers of the trial Court and though the relief given by it will ordinarily, but not necessarily, be limited to the portion of the decree appealed against. See Section 107 and Order 41, Rule 4 and 32, CPC An appeal is considered as a continuation of the suit for purposes of ''res judicata'' and ''lis pendens''. Clause 2 of Col. 3 of Article 182 proceeds on this judicial view of the nature and effect of an appeal from a decree. See per Bhashyam Aivangar J. in -''26 Mad 91 (F.B.) (K) at pp. 95, 96''r per Gwyer C.J. in - AIR 1939 74 (Federal Court) ; per Varadachariar J. in - AIR 1941 5 (Federal Court) Whether the appellate decree confirms, modifies or reverses the original decree, the original decree is merged in the decree of the appellate Court and the final decree to be executed is the decree of the appellate Court. Hence it is that special statutory provision is made in Section 37, CPC for execution of an appellate decree by the trial Court itself.
No doubt it might be said these discussions are all made with reference to composite decrees passed on one and the same date or where an appeal is preferred from a portion of the decree alone even where the decree is one and indivisible. We have endeavoured to show that if not in reality at least as a fiction of law earlier decree must be deemed to be part of the later decree. If no exception could'' be taken to that approach in both or either aspect the conclusion is inescapable that the appeal in this case really gave the decree- holder a fresh starting point of limitation commencing with the date of the decision of the appeal.
Assuming the case cannot be brought within the rule of the decisions relied upon by us by the process of reasoning we have adopted, the judgment of Bhashyam Ayyangar J. furnishes yet Anr. answer to the appeal. That is contained in the concluding paragraph of the judgment and that may with advantage be quoted here in full:
It was argued on behalf of the Respondent that the grammatical interpretation must be departed from inasmuch as the decree may be severally appealed against in parts by different parties and the different appeals may be heard and disposed of on different dates, in which case there will be two or more decrees of the Court of Appeal bearing different dates. In my opinion, when there are different appeals from one and the same suit, they should all be finally disposed of together - which, as far as I know, is the practice - and only one decree passed in the appeal. If the contigency referred to which ought to be avoided, does happen, there will be no insuperable difficulty in adhering to the grammatical interpretation and holding that the date of the final decree referred to in Clause (2) of the third column of Article 179 is the date of the last of such decrees and if a question of limitation should arise in respect of the execution of any portion, time will have to be reckoned only from the date of such last decree of the Court of Appeal.
When different appeals preferred from the same decree are disposed of on different dates, the date of the last one is to furnish the starting point of limitation for execution for all the several appellate decrees. By a parity of reasoning if the trial Court passes several decrees on different dates in one and the same suit the period of limitation for execution of all those decrees can start only from the date of the last of such decrees. It is only the next step in the argument to state that if the last of them is appealed from, the date of the disposal of the appeal will be the date when limitation will commence to run for the execution of the earlier ones as well. Clause 2 of col. 3 of Article 182 has therefore to be taken to be the provision applicable to the case.
We may now refer to two decided cases to support the view the lower Court took in this case and which we affirm here. In -''Ash- fac Hussin v. Gauri Sahai'' 33 All 264 (N), the Privy Council had to decide when limitation began to run for the execution of a decree originally passed ex parte against three Defendants but was afterwards reopened against one alone and a decree happened to be passed again against that Defendant. The Defendant who got the case reopened preferred an appeal to the High Court against the decree passed against her after contest but the appeal was also unsuccessful. The question arose whether as against the two Defendants who submitted to the ex parte decree limitation for execution commenced from the date of the ex parte decree or from the date of the High Court confirmed the subsequent decree as against the other Defendant. Admittedly execution was applied for out of time in case limitation commenced from the date of the ex parte decree. The decision the Privy Council gave was that the date the High Court decision affirming the decree passed after contest marked the commencement of the period of limitation for execution even as against the Defendants who submitted to ex parte decree. The decree was reopened only against the party who applied for it with the result that on paper there were two decrees for one and the same claim, that earlier one against two Defendants and the, later one against the third. Their Lordships held the later decree supplemented and completed the earlier one and that it was from that date or rather from the subsequent date when that was made absolute that the time under the statute began to run. It is in our view difficult to distinguish this case from the present one. No doubt that related to a mortgage decree but the judgment-debtors were Muslims and the reopening of the decree as against one did not preclude the decree-holder from proceeding against the share of the other Defendants for the entire mortgage claim. The fact that in the present case the contest by Defendants 2 to 8 resulted in the dismissal of the suit as against the tarwad and that the High Court confirmed that decision cannot make the applicatory provision of the Limitation Act any the different.
The other case we have in mind is a decision of the Travancore High Court reported as - ''Giri Shenoi v. Navoorkany'' (1926) 42 TLR 215 (O). The head-note to that case reads thus:
The period of limitation for an application to execute a portion of a decree which has not been appealed against runs from the decree parsed on appeal from Anr. portion of the same decree and that the circumstance that the former portion of the decree was all the time executable and was not imperilled by the appeal of the latter portion would not make any difference.
The above does not show that there happened to have in that case two decrees bearing different dates in respect of one and the same claim. Originally an ex parte decree was passed against the two Defendants in the suit but Defendant 1 got the ex parte decree set aside as against him. At the re-trial the suit was dismissed against him and this dismissal was confirmed by the appellate Court. More than three years after the decree passed ex parte originally but within three years of the appellate decree confirming the dismissal of the suit as against Defendant 1 the decree- holder started execution against the other Defendant. His objection that it was barred by limitation was overruled by the execution Court and that was confirmed by the appellate Court. He took the matter in second appeal to the High Court & the High Court dismissed it observing that the circumstance that the decree against the Appellant was all the time executable & was not imperilled by the appeal in respect of Defendant 1 did not make the provision corresponding to Clause 2, col. 3, Article 182 inapplicable to the case. It may be asked whether the conclusion was deducible from the authorities relied upon, but the decision favours the view we take here. This case related to a simple money decree.
In the Privy Council decision referred to above unlike the Travancore case now cited there were two decrees bearing different dates against different persons. In either case the appeal related solely to the person affected by the latter decree. Still the decision was that limitation commenced to run even as against the persons who submitted to the trial Court''s original ex parte decree only from the date of the appellate decree.
Before concluding we must refer to the observations of Sir John Beaumont C. J. in - ''Jacinto v. Fernrindez (I)'', relied upon by the Appellant''s learned Counsel in support of his argument. These observations occur at page, 455 of the report and read:
It is perfectly plain on the language of Article 182 that the words ''where there has been an appeal'', in the last column, mean an appeal from the decree sought to be executed, and not an appeal from Anr. decree, though made in the suit.
The Division Bench which decided ''Govindan. v. Damodaran (H)'' has referred to the above case and as remarked there the observations are ''obiter''. The point for determination in that case was whether any time was prescribed for making an application for execution of the decree in so far as it directed partition of lands assessed to land revenue. As Sir John Beaumont C.J. himself remarked no question of limitation arose in the case but only a question of practice in execution. For the determination of that point it was not necessary to express any opinion about the words quoted from Article 182. In that case decrees for partition happened to be passed with respect to distinct items of properties of which one decree alone was appealed from. One decree related to house property and the other to property subject to assessment to Government revenue. The subject-matter of either decree was therefore distinct and separate unlike the amount due under a promissory note claimed against different persons as in this case. Further, our decision here is based on the view that in substance if not in form there has been only one final decree in the suit. If that be true the ''obiter dicta'' in ''Jacinto v. Fernandez (I)'' does not run counter to our view.
19 The appeal fails in the result and we dismiss it with costs.