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Judgment
Subba Rao, J.—The mortgagors are the appellants. The history of this litigation is found in the judgment of Wadsworth and Patanjali Sastri
JJ. in A.S. No. 463 of 1911. It is not necessary to restate the facts as they have been fully stated in that judgment. It will be enough if we notice the
relevant facts sufficient for disposing of this appeal. The respondents obtained a preliminary decree on two mortgages on 17-8-1928 against the
appellants and others. The final decree was passed on 16-9-1929. Defendants 3 and 15, who are the purchasers of portions of the hypotheca,
preferred an appeal to '' the High Court, being A.S. No. 33 of 1929. That appeal was disposed of on 8-12-1933. The preliminary decree was
modified in some respects. Whereas under the decree of the Subordinate Judge, all the mortgaged properties were directed to be sold in the order
mentioned in the mortgage deed, in the appeal the High Court directed that the properties purchased by defendants 3 and 16 should be sold last.
With this modification the appeal was dismissed. Before the appeal against the preliminary decree was disposed of, the final decree was executed
and the decree-holder purchased the properties, and the decree was satisfied in part. The decree-holder filed Application No. 6 of 1937 on 8-12
1936 for the passing of a fresh final decree, while the judgment-debtors filed an application under Madras Act IV [4] of 1938 for scaling down the
decree debt. For tactical purposes the plaintiffs obviously withdrew their application, and the application was accordingly dismissed. In the
application filed by the judgment-debtors for scaling down the decree debt, it was scaled down. The plaintiffs preferred an appeal to the High
Court, being A.S. No. 463 of 1941. The learned Judges held that the amount due under the decree after giving credit to the amounts realised by
the sale of the properties should be scaled down. When the mortgagors brought to the notice of the Court that they had filed an application in the
lower Court for restitution of the properties sold, the learned Judges reserved the right of the mortgagors to proceed with that application. After the
disposal of A. S. No. 463 of 1941, the restitution application was taken up and the learned Subordinate Judge dismissed the same. The
mortgagors have preferred the above appeal.
The only question that arises in the appeal is whether a sale held in execution of a final decree would be void if subsequently, in an appeal filed
against a preliminary decree, the final decree was modified, though the said modification did not affect the right of the mortgagee to proceed against
the properties concerned. The learned counsel for the appellants contended that in a mortgage action there can be only one final decree, that when
in the appeal against the preliminary decree the appellate Court modified the preliminary decree the final decree lost its legal force, that the sale
held pursuant to the final decree was void and therefore that the judgment-debtors would be entitled to a restitution of the properties so sold
leaving the mortgagees to work out their rights by filing a fresh application for the passing of the final decree. This argument wag based upon some
observations made by the Judicial Committee and by the High Courts in the various decisions cited before us. In Jowad Hussain v. Gendan Singh,
6 Pat. 24: A. I. R. 1926 P. C. 93 the question for consideration was whether the time for filing an application for the passing of the final decree
Should be computed from the date of the appellate decree or from the date of the original decree. The Judicial Committee held that the period of
limitation would run from the date of the appellate decree, though the appellate decree only confirmed the original decree. In the course of the
judgment they expressed their approval of the view of the Allahabad High Court in the decision in Gajadhar Singh Vs. Kishan Jiwan Lal and
Others, to the effect that a mortgage action contemplates the passing of only one final decree in a suit for sale upon a mortgage. The Patna High
Court in another decision Somar Singh and Others Vs. Deonandan Prasad Singh and Others, , held that an application for enforcing a final decree
for sale in a mortgage suit was an application for execution and was governed by Article 182 and not by Article 181, Limitation Act. This view is
not sound in view of the later decisions. At p. 787 the learned Judges say;
In the case now before us the final decree for sale which was made on 28-10-1922 during the pendency of the appeal, against the preliminary
decree was clearly Imperilled by the appeal, and the decree made by the High Court on 29-10-1925, clearly supplemented and completed the
decree on 28-10 1922.
The observation does not touch the question to be decided in this case. Whenever an appeal is filed against the decree of an original Court,
Certainly it is imperilled, as the appellate Court may modify, confirm or allow the appeal and the decree of the lower Court is necessarily subject to
the decision of the appellate Court. The observations of the learned Judges in Janki Das and Another Vs. Sheo Prasad and Another, , were also
pressed into service by the learned counsel. The question in that case was whether an appellate Court had power to stay execution of a final
decree although no appeal was filed from the preliminary decree. In the course of that judgment they observed:
It cannot be denied that any interference with the preliminary decree in the appeal there from would have the effect of the final decree being
vacated, and that if execution of the final decree is allowed to proceed, rights may come into existence before the disposal of the appeal from the
preliminary decree.
It is no doubt true that if a preliminary decree is modified, to that extent, the final decree will have to be modified, as otherwise the final decree will
be inconsistent with the preliminary decree. The wide observations made by the learned Judges in connection with a different argument cannot be
utilised in support of an argument which was neither raised nor considered by the Court in that cage. In Taleb Ali and Another Vs. Abdul Aziz and
Others, , the learned Judges held that an appeal from a preliminary decree was not incompetent if a final decree was marie before the appeal was
presented. The observations relied upon are found at p. 1038:
In my judgment, the final decree is, in its nature, dependent and subordinate, because it is a decree which has been passed as a result of
proceedings directed and controlled by the preliminary decree and based thereon."" These observations need not be questioned. But at p. 1039
they also observed:
I would add that when a preliminary decree is set aside, the final decree is superseded, whether the appeal was brought before or after the
passing of the final decree and that, in my judgment, an appellate Court, when setting aside or varying a preliminary decree, can, and indeed should
give directions for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notice, as in all cases it ought to
be.
These observations indicate that the proper modifications can be embodied in the final decree if in an appeal against the preliminary decree the
original decree wag varied. In Periakaruppan v. Venugopal, I. L. B. (1947) Mad. 132: A. I. R. 1946 Mad. 383, a Bench of this Court had to
consider the scope of a decree of the appellate Court in appeal against the preliminary decree. The facts in that case are that a preliminary
mortgage decree was passed on 4-5-1929. A final decree was passed on 23-9-1933. On 26-11-1934 is the appeal against the preliminary
decree, the decree amount was reduced. No fresh final decree was passed. The decree-holder filed two execution applications for executing the
final decree passed on 23-9-1933 and on 31-3-1942. Along with the second execution application, he filed an application for amendment of the
execution petition by substituting the amount awarded by the appellate decree in place of the amount awarded by the final decree of 23-9.1933.
The District Judge allowed the amendment and directed execution to proceed. It was argued that the application was barred by time. In dealing
with that question, the learned Judges made the following observations :
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
an 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 this case when the properties were sold, the final decree was in force. Subsequent to the sale the preliminary decree was only modified in regard
to the order prescribed for sale. Even that modification only gave relief to defendants 3 and 15. The said defendants are not now questioning the
sale of their properties, The preliminary decree passed by the Subordinate Judge in so far as the appellants are concerned was not even modified
by the appellate Court. In the circumstances, following the observations of the learned Judges in the above case, we have no hesitation in holding
that the sale held in execution of the final decree passed on 16.9.1929 was valid and binding on all the parties concerned.
The order of the lower Court is right, and the appeal is dismissed with costs.