# SITAJ. PARSHAD v. KISHORILAL

- **Citation:** [1967] 3 S.C.R. 101
- **Court:** Supreme Court of India
- **Decided:** 1967-03-06
- **Case number:** Civil Appeal No. 855 of 1964
- **Bench:** K. N. Wanchoo, R. s. BACHAWAT, v. RAMASWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sitaj-parshad-v-kishorilal-4185
- **Pages:** 13

## Headnote

B
March 6, 1967
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Code of Civil Procedure, 1908 (Ace S of 1908), 0. XXXIV-Preli--
1ninary decree nu1de final while appeal
pending-Variation in appealEfject.
The respondent obtained a preliminary
decree in 1952 against the
appellant for the sale of the mortgaged property.
He appealed to the
High Court for interest and costs which was not allowed
in the l'reliminary decree. The appellants did not appeal
against the prelimmary
decree.
On respondent's application, the preliminary
decree was made
final in 1954. While execution proceedings were pending, the respondent's appeal was allowed in 1956 in respect of the interest and costs.
In 1960 the
appellant objec'ed
under· s. 47 C.P.C.,
that as no final
decree had been prayed for and passed after the judgment of the High
Court in appeal and as more than three years had passed since tbe juda·
ment of the High Court, there was no final decree to be executed, u tlie
final decree which had been prepared in 1954 on the
basis of which
execution was going on must be held to have no force and effect after
the judgment of the High Court making a variance
in the preliminary
decree. The respondent contended that it was not
necessary to apply
for a fresh final decree after the judgment of the Hi~h Court in appeal
and that the final decree already passed in 1954 rema10ed good and was
executable. The
appellant's
objection was rejected.
In appeal,
this
Court.
HELD : The appeal must fail.
Where a p'rcliminary decree has been reversed in appeal, the final
decree must fall to the ground for there is no preliminary decree there·
after in support of it.
It is not necessary in such a case for the defen·
dant to go to the cou-rt passing the final decree and ask it to set aside
the final decree. If an execution petition is made-on such a final decree
even though more than three years after the decree in appeal has been
reversed, the defendant has simply to ask the court where the execution
petition is made to refuse to execute the decree on the ground that the
preliminary decree in support of it has been set aside. In such a case
it is the duty of the executing court to take note of the fact that the
preliminary decree in support of the final decree has been reversed and
it should refuse to execute the final decree even though the· fact is
brought to its notice more than three years after the decree in appeal reverning the preliminary decree and no question of limitation
arises.
(106 G-107 CJ
Where the decree in appeal from the rreliminary decree confirms it
in toto, the final decree already passed needs no change and must continue to stand. It h true that if no final decree has been passed before
the appeal from the preliminary decree is dec;ded, the decree-h61de-r gets
three years from the da'e of the decree in appeal from the rreliminary
decree to apply for a final decree. That however is a question of limitation and in such a case three years run from the date of the decree in
appeal from the preliminary c!ecree in order apparently not to compel
the decree-holder to apply for a final decree if he does not wish to do
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SUPRBMB COURT REPORTS
[1967] 3 S.C.R.
so and wants to await the result of the a11peal
from the preliminary
decree. But if the decree-holder does not wish to await the result of the
appeal from the freliminary decree he can ask for a final decree in the
mean time and i tho preliminary decree is confirmed In toto the final
.decree will need no change and
can be
executed as ·it stands. The
.decree holder in such a case need not apply for a fresh finnl decree and
can execute the final decree already pa85ed in the meantime. In all cases
where a final decree has been passed in the meantime while an appeal
from the preliminary decree is pending, the existence of the final decree
ought to bo brought to the notice of the appellate court and it is tho duty
of the ap~llate court to give directions with respect to the final decree
if ·it considers necessary.
Further in a case where an a

## Text

A
SITAJ. PARSHAD
v.
KISHORILAL
March 6, 1967
[K. N. WANCHOO, R. s. BACHAWAT AND v. RAMASWAMI, JJ.J
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March 6, 1967
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Code of Civil Procedure, 1908 (Ace S of 1908), 0. XXXIV-Preli--
1ninary decree nu1de final while appeal
pending-Variation in appealEfject.
The respondent obtained a preliminary
decree in 1952 against the
appellant for the sale of the mortgaged property.
He appealed to the
High Court for interest and costs which was not allowed
in the l'reliminary decree. The appellants did not appeal
against the prelimmary
decree.
On respondent's application, the preliminary
decree was made
final in 1954. While execution proceedings were pending, the respondent's appeal was allowed in 1956 in respect of the interest and costs.
In 1960 the
appellant objec'ed
under· s. 47 C.P.C.,
that as no final
decree had been prayed for and passed after the judgment of the High
Court in appeal and as more than three years had passed since tbe juda·
ment of the High Court, there was no final decree to be executed, u tlie
final decree which had been prepared in 1954 on the
basis of which
execution was going on must be held to have no force and effect after
the judgment of the High Court making a variance
in the preliminary
decree. The respondent contended that it was not
necessary to apply
for a fresh final decree after the judgment of the Hi~h Court in appeal
and that the final decree already passed in 1954 rema10ed good and was
executable. The
appellant's
objection was rejected.
In appeal,
this
Court.
HELD : The appeal must fail.
Where a p'rcliminary decree has been reversed in appeal, the final
decree must fall to the ground for there is no preliminary decree there·
after in support of it.
It is not necessary in such a case for the defen·
dant to go to the cou-rt passing the final decree and ask it to set aside
the final decree. If an execution petition is made-on such a final decree
even though more than three years after the decree in appeal has been
reversed, the defendant has simply to ask the court where the execution
petition is made to refuse to execute the decree on the ground that the
preliminary decree in support of it has been set aside. In such a case
it is the duty of the executing court to take note of the fact that the
preliminary decree in support of the final decree has been reversed and
it should refuse to execute the final decree even though the· fact is
brought to its notice more than three years after the decree in appeal reverning the preliminary decree and no question of limitation
arises.
(106 G-107 CJ
Where the decree in appeal from the rreliminary decree confirms it
in toto, the final decree already passed needs no change and must continue to stand. It h true that if no final decree has been passed before
the appeal from the preliminary decree is dec;ded, the decree-h61de-r gets
three years from the da'e of the decree in appeal from the rreliminary
decree to apply for a final decree. That however is a question of limitation and in such a case three years run from the date of the decree in
appeal from the preliminary c!ecree in order apparently not to compel
the decree-holder to apply for a final decree if he does not wish to do
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SUPRBMB COURT REPORTS
[1967] 3 S.C.R.
so and wants to await the result of the a11peal
from the preliminary
decree. But if the decree-holder does not wish to await the result of the
appeal from the freliminary decree he can ask for a final decree in the
mean time and i tho preliminary decree is confirmed In toto the final
.decree will need no change and
can be
executed as ·it stands. The
.decree holder in such a case need not apply for a fresh finnl decree and
can execute the final decree already pa85ed in the meantime. In all cases
where a final decree has been passed in the meantime while an appeal
from the preliminary decree is pending, the existence of the final decree
ought to bo brought to the notice of the appellate court and it is tho duty
of the ap~llate court to give directions with respect to the final decree
if ·it considers necessary.
Further in a case where an appeal from the
preliminary decree is dismissed and the preliminary decree is confirmed
In. toto, it. does not follow that the period of payment allowed in
the
ma! court's decree is extended automatically even though a final decree
has been passed in the meantime. It is the duty of the appellate court
to indicate, when dismissing the appeal
from a
preliminary
decree
in toto, whether the time for payment is to be extended and if it does
not do ao, the original time granted for the purpose must ~tand. Where
the appellate court, in an appeal from a preliminary decree .. says nothing
al>out the time fixed for payment and confirms the preliminary decree
In toto that time stands and does not automatically get extended for six
months or such other period as mi~ht have been fixed in the preliminary
decree from the date ·of the decree 10 apr••l from the preliminary decree.
It is not obligatory on a court of appea to fix a .fresh date for redemp·
tion In ·a mortgagor's appeal' from a mortgage decree for sale even where
there is aomo variation in the amount payable
under
the p·reliminsry
decree. (110 B·lll CJ
Where the amount decreed is increased, as in the present case,
the
matter stands on exactly the same footing as in the case where the appeal
from the iireliminary decree by
the
defendant is dismissed in toto.
Where variation is in favour of the defendant and the amount fixed for
redemption is reduced, it is the duty of the appellate court when it is
reducing the amount payable. for redemption to fix aome time for the
purpose in the interest of justice. But 11 is not bound to do so and if
1t does not do ao, the original time fixed in the preliminary decree stands
even though the amount for redemption may have been reduced. There
;, no harm to the defendant mortgagor in such a case,
for, under
O.XXXIV r. S(l) the mortgagor would have time up to the date of
c<infirmation of sale to deposit the amount and save the property. (1110-0J
Even where there has been a varfation in the decree, the final decree ..
if passed in the meantime, requires no formal amendment in view of the
fQrm in which a final decree for sale is prepared. All that happens is
that where the preliminary decree is varied one
way or the oth~r. the
final decree which is entirely dependent on the preliminary decree stands
varied by its 6wn terms in accordance with the terms of the preliminary
decree passed in appeal. It is the duty of the executing court when it
is .executing the final decree passed in the
meantime to
see that the
execution is In accordance with the preliminary decree pa8'ed in appeal
which is the support of the final decree.
Of course,
if the appellate
court when deciding the appeal gives ~n~ particular directio!' w!th res·
pect to the preparation of a fresh prehmmary de~ree . that direction has
to be carried out. Where there are no specific d1recltons of the appellate court with respect to the preparation. of a new prel!m!nary . decree,
arid all that the appellate court orders
1s mer~ly a variation
m
the
amount for redemption it is duty of the executmg court to see when ti
is asked to· execute a final decree prepared in the meantime that
the
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SITAL PARSHAD v. KISHORILAL (Wanchoo, J.)
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IAOdifications made by the appellate C0!1rt in the aPI'""! from the J!relio
minary decree are given effect to durlJlll the execution proceed1•91o
(111 H-112 BJ
In the circumstances of the present
caae it was the duty
of the
eJteCUting court, when variations made by the appellate court in appeal
form 6 and all that the executing court had to do WM to take note ot
account in executing the fin•! decree, which. had been prep~red ,in the
meantime. The final de<.ree m terms
reqmred no change m view of
from the preliminary decree were brought to its notice, to take. them into
the fact that the supporting preliminary decree had been vaned and to
er.ecute the final decree in accordance therewith. [112 Q·Hl
Perlkaruppan Ch.ettlar v. Venugopal PU/al, I.L.R. [1947] Mad. 132;
Rukhmabai v. Krishnarao, I.L.R. [1952]
Nag. 243 and
Gandavaraup
Ve11kata Subba Rao v. Vavl/al Kesavayya, A.I.R. [1955} A.P. 254; approved.
Ram Nath v. Deoki Nand Krish11a, I.L.R. (1947] All. 40; Abdul Jalil
v. Amar Chand Paul, (1913) XVIII Cal. L.J. 223 and Mewa Singh v.
Tara Singh, A.I.R. [193,3) Lah. 859; disapproved.
Muhammad Sulaiman Khan v. Muhammad Yar Khan, l.L.R. {1888]
11 All. 267; Jowad Hussain v. Gendan Singh, (1926) 53 I.A. 197 and
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Flltlwlme1 v. Bank of Upper India; (1926) 54 I.A. 52; referred to.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 855 of
1964.
Appeal from the judgment and order dated November 7, 1962
of the Punjab High Court in Letters Patent Appeal No. 334 of
1961.
Rameshwar Dial and A. D. Mathur, for the appellants.
B. C. Misra, M .. V. Goswami and S. S. Shukla, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J.
This is an appeal on a certificate granted by the
High Court of Punjab and raises a question of law on which there
is some difference of opinion amongst the High Courts.
Brief
facts necessary for present purposes are these.
The respondent
obtaind a preliminary decree in a mortgage suit against the appellants on March 13, 1952.
The decree was for sale of the mortgaged property.
As the preliminary decrel'liid not allow interest
to ~he respondent from the date of the suit to the date of the prelunmary decree, he filed an appeal to the High Court in that connection.
The appellants (Judgment-debtors) were apparently
content with the preliminary decree for they filed no appeal.
As
there was no stay order passed by the High Court, for the judgment-debtors had not appealed, the respondent applied for making
the preliminary decree final and on August 16, 1954 the preliminary decree was made final under O.XXXIV r. 5 of the Code
of Civil Procedure.
On August 18, 1954, the resrondent took
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(1967] 3 S.C.R.
out execution of the final decree.
On December 17, 1956, while
the execution proceedings were pending, the respondent decree·
holder's appeal in the High Court was allowed and the High Court
allowed interest to the respondent.
On April 2, 1960, the appel·
!ants objected under s. 4 7 of the Code of Civil Procedure that as
no final decree had been prayed for and passed after the judgment
of the High Court in appeal and as more than three years had
Pl!SSed since the judgment of the High Court, there was no final
decree to be exec.uted, as the final decree which had been prepared on August 16, 1954 on the basis of which execution was going
on must be held to have no force and effect after the judgment of
the. High Court making a variance in the preliminary decree. The
respondent however contended that it was not necessary to apply
for a fresh final decree after the judgment of the High Court in
appeal and that the final decree already passed on August 16
1954 remained good and was executable.
'
The executing court rejected the contention of the appellants.
Thereupon the appellants went in appeal to the High Court and
this appeal was dismissed by a learned Single Judge.
Then the
appellants came in Letters Patent Appeal which has also been dismissed.
As however there was some difference of opinion
amongst the High Courts on the question of law raised in the
appeal, a ~ertificate was granted by the High Court; and that· is
how the matter has come before us.
We may indicate the two main lines of decisions in this matter.
The first, which is in favour of the appellants is represented by
Ram Nath v. Deoki Nand Krishna(').
In that case a preliminary decree was passed in a suit on a mortgage.
Pending an
appeal from the preliminary decree, the final decree was passed.
Thereafter the appeal was decided and the preliminary decree was
modified and a fresh preliminary decree was directed to be pre·
pared which was done.
The decre~·holder however applied ~or
the execution of the final decree which had been prepared earher
and did not apply either for amendment of that final decree so as
to bring it in conformity with the decree of the appeal court or for
preparation of a fresh fin.al decree.
Later however, more than
three years after the judgment in appeal, the decree-holder applied
for amending the final decree so as to bring it in accord with the
decree passed by the appeal court.
The High Court held that. as
the preliminary decree passed by the trial court had been vaned
by the appeal court, the Jina! decree which had already ?ei;n pre·
pared fell to the ground and could not be e1rncuted unul 1t was
made consistent with the preliminary decree passed by the appellate court or a fresh final decree was prepared in accordance with
it.
Further as the application for amendment was made more
(1) 1.L.R. [1947] All. 40.
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than three years after the jud~ent of the appeal court it was
barred by art. 181 of the Limitation Act.
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The leading case on the other side is Perikaruppan Chettiar v.
Venugopal Pillai('). In that case a preliminary mortgage decree
had been passed on May 4, 1929 and there was an appeal against
it by one of the defendants.
Pending the appeal, as further proceedings in the suit had not been stayed, the trial court passed a
final decree on September 23, 1933 on the basis of the preliminary decree passed on May 4, 1929.
On November 26, 1934,
the appeal was allowed in part, which had the effect of reducing
the amount decreed.
No fresh final decree was passed on the
basis of the appellate decree.
After the decision of the High
Court the decree-holder filed an execution petition on September
23, 1936 to execute the final decree passed on September 23,
1933 and again another execution petition in 1939 and finally
another one on March 31, 1942. Along with the last execution
petition 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 dated
September 23, 1933. The amendment was allowed by the first
court. Thereupon the judgment-debtor went in appeal to the High
Court contending that the application for amendment ·filed in
March 1942 was barred by time as it was more than three years
after the decree of the High Court in appeal. The High Court dismissed the appeal holding that the final decree already prepared
can be executed with such modifications as may be necessary in the
circumstances, whether the preliminary decree is affirmed in toto
or is varied to any extent or in any particular in appeal The
High Court further held that it was the duty of the Court which
passed the final decree to carry out such modifications as might
be necessary by reason of the decision of the appellate court in
an appeal against the preliminary decree when its attention was
drawn to tlie necessity for such alteration by the decree-holder.
So long as the decree was kept alive, there could be no bar of
limitation to an application of this kind.
Such an application
really called upon the court to carry out modifications which in
law automatically took place in the final decree already prepared
before the decree of the appellate court.
The questio.n bef?re us in the present appeal therefore is which
of these two views is correct.
Before we consider this question
~e .ma11y state certain well-~ettled propositions with respect to prelnrunary and final decrees m mortgage suits and the effect of an
appellate decree in general on the decree of the trial court.
Generally speaking, the decree of the appellate court supersedes the
decree of the trial court even when it confirms that decree and
(I) LL.R. (1947] Mad. 132.
M4 SupCI/67-8
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(1967] 3 S.C'.R.
therefore it is well-settled that only the appellate court can amend
the decree thereafter : [see Muhammad Sulaiman Khan v. MuhamMad Yar Khan(')].
It is equally well-settled that where an
appeal has been taken from a preliminary mortgage decree and is
decided, the time for preparation of final decree is three years
from the date of the appellate decree even though the appellate
court may not have extended the time for payment provided in
the preliminary decree, where no final decree has been prepared
in between : [see Jawad Hussain v. Gendan Singh(")].
This
applies even to a case where the decree of the appellate eourt is
made more than three years after the time fixed for payment in
the preliminary decree : [see Fitzho/mes v. Bank of Upper
India( 3 )].
Further it is well-settled that the mere fact that there
is an appeal from a preliminary decree does not oust the jurisdiction of the trial court to prepare a final decree even while the
appeal is pending unless there is a stay order : [see Sat Prakash v.
Bahal Rai (') ]. Even if a final decree has been passed and an
appeal from a preliminary decree is not incompetent and it is not
necessary for a party to appeal both from the preliminary decree
and the final decree in order to maintain his appeal against the
preliminary decree.
In such a case where the preliminary decree
is set aside the final decree is superseded whether the appeal is
brought before or after the passing of the final decree ; [see
Talebali v. Abdul Aziz(')]. Further it was observed in the last
case that where an appellate court sets aside or varies a preliminary decree it can, and indeed could, give direction for the setting
aside or varying of the final decree, if the existence of the fi11al
decree is brought to its notice as in all cases it ought to be.
Let us now turn to the problem before us keeping in mind the
propositions indicated above.
Now in an appeal from a preliminary decree one of three things is possible.
Firstly, the appeal
may be allowed and the preliminary decree reversed.
Secondly.
the appeal may be dismissed and the preliminary decree confirmed
in toto.
And thirdly, there may be modification of the preliminary decree in appeal and this modification may be one of two
kinds : ( i) the amount decreed may be increased or (ii) the
amount decreed may be reduced.
There can in our opinion be no doubt that if in appeal the
preliminary decree is reversed, the final decree must fall to the
ground for there is no preliminary decree thereafter in support of
it. It is not necessary in such a case for the defendant to go to
the court passing the final decree and ask it to set aside the final
decree.
Even if the defendant does not make an application to
(21 [1926] 5J I.A. 197.
(ll l.L.R. (1888) II All. 267.
(3) (1926) 54 I.A. 52.
(41 I.LR. [1931] LlCTI ,.\ll 28J,
(5) I.LR. [19JO] LVll CII. lillJ,
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SIT AL PARSHAD v. KISHORILAL ( w anchoo' J.)
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the court for setting aside the final decree within three years because the preliminary decree has been reversed, the decree-hoWer
cannot get the right to execute the final decree which has no preliminary decree in support of it. If an execution petition is made
on such a final decree even though more than three years after
the decree in appeal has been reversed, the defendant has simply
to ask the court where the execution petition is made to refuse to
execute the decree on the ground that the preliminary decree in
support of it h_as been set aside. It seems to us that in such a
case it is the duty of the executing court to take note of the fact
that the preliminary decree in support of the final decree has been
reiVersed and it should refuse to execute the final decree even
though the fact is brought to its notice more than three years after
the decree in appeal reversing the preliminary decree.
In such a
case in our opinion no question of limitation arises.
Now ~ake the second case where the preliminary decree has
been confirmed in toto and a final decree passed on such decree
already existl.
It is contended on behalf of the appellants that
in such a case the decree-holder must apply for preparation of a
final decree within three years of the judgment of the appellate
court confim1ing the preliminary decree in toto.
Reliance in this
COill1ection is placed on an observation in
the case of Fitzholmes (1) in these words :
"The mortgagors were right in their objection that
these decrees should not be enforced till six months had
elapsed from the judgment of the High Court."
In that case the preliminary decree had given six months tin1e for
payment and this observation seems to suggest that where the
prelin1inary decree is confirmed six months given therein begins
from the date of the confirmation of the preliminary decree in
appeal. With respect, the observation seems to be obiter for the
point really in· dispute in that case was whether a final decree
eould be asked for within three years of the judgment of the appellate court confinning the preliminary decree and it was held that
it could be so asked for, even though the time fixed in the preliminary decree for redemption had not been extended.
In that
case no final decree had been passed in-between and no question
arose as to what would be the effect of the decree passed in appeal
from the preliminary decree on a final decree passed in the meantime.
This observation in that case is therefore in our opinion
of no help to the appellants in deteffi1ining the question before
us.
To determine this question we have to look to the provisions
of 0. XXXIV of the Code of Civil Procedura providing for preli-
(1} [1926) 54 I.A. 52.
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(1967] 3 S.C.R.
minary and final decrees.
Preliminary decree in a suit for sale
with which we are concerned in the present case is prepared under
O. XXXN r. 4 read with O. XXXIV r. 1. It provides (a) for an
account to be taken of what was due to the plaintiff at the date of
such decree fof principal and interest .on the mortgage, the costs
of the suit, if any, awarded to him, and other costs, charges
and expenses properly incurred by hinI upto that date in respect
of his mortgage security, together with interest thereon, (b) for
declaring the amount so due at that date, and ( c) for directing
that, if the defendant pays into court the amount so found· or
declared on or before such date as . the court may fix within six
months from the date on which the court confirms and countersigns the account taken under cl. (a) or from the date on which
such amount is declared in court under cl. (b), as the case may
be, and thereafter pays such amount as may be adjudged due in
respect of subsequent costs, charges and expenses as provided ·in
r. 10, together with subsequent interest on such sums respectively
as provided in r. 11, the plaintiff shall deliver up to the defendant
or to such person as the defendant appoints, all documents in his
possession or power relating to the mortgaged property, and shall,
if so required, re-transfer the property to the defendant at his
cost free from the mortgage and from all incumbrances, and shall
also, if necessary, put the defendant in possession of the property
According to the rule, the decree shall further provide that in
default of the payment by the defendant as directed the plaintiff
shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and proceeds
of the same (after deduction therefrom of the expenses of the sale)
be paid into court and applied in payment of what has been found
or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due
in respect of subsequent costs, charges, expe.nses and interest, and
the balance, if any, be paid to the defendant or other persons
entitled to receive the same.
It will thus be seen that the preliminary decree in a suit for
sale determines the amount due on the date thereof after accounting if necessary and directs the defendant to pay that aniount to-
-gether with interest and subsequent costs, charges and expenses
as provided in rr. 10. and 11.
Thus the preliminary decree is
complete in itself and the amount due to the decree-holder right
upto the time that the execution is complete is either provided
therein or worked out from the directions contained therein.
Then follows the final decrees under 0. XXXIV r. 5(3) with
which we are concerned in the present case.
That directs that
where payment is not made on or before the date fixed in the preliminary decree the court shall on application made by the plaintiff in this behalf pass a final decree directing that the mortgaged
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property or a sufficient part thereof be sold, and that the proceeds
of the sale be dealt with in the manner provided in sub-r. (I) of
r. 4. Further under 0. XXXIV r. 5 (I) the defendant has a further right at any time before the confirmation of the sale made in
pursuance of a final decree passed under sub-r. (3) of this rule, to
pay the money in court, and if that is done the court has to make
directions in accordance with this sub-rule.
It will be seen from these provisions that a final decree does
not mention any amount and is merely based on the preliminary
decree and in a sense caFries out that decree.
Form No. 6 of the
final decree in the First Schedule, Appendix D also bears this out.
It says that as the payment has not been made as directed by the
preliminary decree, ir is hereby ordered and decreed that the
mortgaged property mentioned in the aforesaid preliminary decree
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.
The final decree ·further directs as
follows:-
"And it is hereby further ordered and decreed that
the money realised by such sale shall be paid into the
court and shall be only applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may
have been passed in this suit and in payment of any
amount which the court may have adjudged due to the
plaintiff for such costs of the suit including the costs of
this application and such costs, charges and expenses as
may be payable under r. I 0, together with such subsequent interest as may be payable under r. 11 of
0. XXXIV of the First Schedule to the Code of Civil
Procedure, 1908 and that the balance if any shall be paid
to the defendant or other persons entitled to receive the
same."
It will be seen from this form of the final decree that it is
entirely dependant upon the preliminary decree.
Therefore where
the preliminary decree has been confirmed in toto and the appeal
theref~rm has been dismissed, there is no change whatever to be
made m the final decree, for that decree already provides for subsequent interest after the date of the preliminary decree and for
subsequent costs, charges and expenses.
Therefore, in such circumstances if the final decree has already been prepared before
the judgment in appeal from the preliminary decree, there is
nothing more to be done and the final decree as it stands needs
no amendment.
It is true that there is a general principle that a
decree passed in appeal even where it confirms the trial court's
t
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SUPREME. COURT REPORTS
(1967) 3 S.C.R.
decree supersedes that decree.
But where we are dealing with a
decree passed in appeal from a prelin!inary decree and the final
decree has already been passed in the meantime, the decree of the
appellate court on apeal from the. preliminary decree only supersedes the prelin!inary decree; it cannot and does not supersede the
final decree which was not taken in appeal.
Therefore if the
decree in appeal from the preliminary decree confirms it in toto,
the final decree already passed needs no change and must continue to stand. It is true that if no final decree has been passed
before the appeal from the preliminary decree is decided, the
decree-holder gets three years from the date of the decree in appeal
from the preliminary decree to apply for a final decree.
That
however is a question of !imitation and courts have held that in
such a case three years run from the date of the decree in appeal
from the prelinJinary decree in order apparently not to compel the
decree-holder to apply for a final decree if. he does not wish to do
so and wants to await the result of the appeal from the preliminary decree.
But if the decree-holder does not wish to await the
result of the appeal from the preliminary decree he can ask for a
final. decree in the meantime, and if the prelin!inary decree is confirmed in toto the final decree will need no change and can be
executed as it stands.
The decree holder in such a case need not
apply for a fresh final decree and can execute the final decree
already passed in the meantime.
In such cases where a final
decree has been passed in the meantime while an. appeal from the
preliminary decree is pending, it is well to remember the observations of Rankin C. J. in Talabali's case(') that the existence of
the final decree ought to be brought to the notice of the appellate
court in all cases and that it is the duty of the appellate court to
give directions with respect to the final decree if it considers
necessary.
Further we are of opinion that in a case where an appeal from
the preliminary decree is dismissed and the preliminary decree is
confirmed in toto, it does not follow that the period of payment
allowed in the trial court's decree is extended automatically even
though a final decree has been passed in the meantime.
It seems
to us that it is the duty of the appellate court to indicate when dismissing the appeal from a preliminary decree in toto whether the
time for payment is to be extended and if it does not do so, the
original time granted for the purpose must stand. In the present
case the decree passed in appeal from prelin!inary decree shows
that after setting out the decree of the trial court, all that the
appellate court did was to say that the preliminary. decree passed
by the trial court was amended to this extent that the plaintiff
would also be entitled to interest at Rs. 6 per cent on the principal
amount from the date of the suit till the date of the decree and
(!) I.L.R. [193<! LVII Cal. 1013.
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SITAL PARSHAD v. KISHOR!LAL (Wanchoo, J.)
111
also gave the plaintiff costs of the appeal.
There was no direction for preparation of any fresh preliminary decree; nor was there
any direction of changing the period fixed in the preliminary decree
for payment of the amount.
Where therefore the appellate court
in an appeal from a preliminary decree says nothing about the
time fixed for payment and confirms the preliminary decree in
toto that time in our opinion stands and does not automatically
get extended for six months or such other period as might have
been fixed in the preliminary decree from the date of the decree
in appeal from the preliminary decree.
We agree with the view
taken in Rukhmabai v. Krishnarao(1) that it is not obligatory on
a court of appeal to fo.. a fresh date for redemption in a mortgagor's
appeal from a mortgage decree for sale even where there is some
variation in the amount payable under the preliminary decree.
Then we come to the third class of cases where there has been
variation by the appellate court in· appeal from the preliminary
decree.
This variation can be of two kinds; firstly, the amount
fixed for redemption may be increased as happened in the present
case, or secondly, it may be reduced.
In the first case we are of
opinion that the matter stands on exactly the same footing as in
the case where the appeal from the preliminary decree by the defendant is dismissed in toto.
However, in the second case, where
variation is in favour of the defendant and the amount fixed for
redemption is reduced, a question may arise whether the period
for redemptio!) can be said to have been extended for six months
or such other time as may be provided in the preliminary decree
under appeal but beginning from the date of the decree in appeal.
In such a case we are of opinion that it is the duty of the appellate
court when it is reducing the amount payable for redemption to
fix some time for the purpose in the interest of justice.
But it is
not bound to do so and if it does not do so, ihe original time fixed
in the preliminary decree stands even though the amount for
redemption may have been reduced: [see Rikhmabai's case(')].
Nor do we think that any serious harm is done to the defendantmortgagor in such a case for under 0. XXXIV r. 5 (1) even
though no fresh time may have been fixed by the appellat~ court
where the amount for redemption is reduced, the mortgagor-defendant would have time upto the date of the confirmation of sale
to deposit the amount and save the property.
In these circumstances we see no reason to distinguish even this case where variation results in reduction of the amount of redemption from the
case where the decree of the appellate court affirms the · preliminary decree in appeal in toto.
We are further of opinion that even where there has been a
variation in the decree, the final decree, if passed in the meantime,
(!) l.L.R. [1952] Nag. 24J.
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SUPREME COURT REPORTS
[1967] 3 S.C.R.
requires no formal amendment in view of the form in which a
final decree for sale is prepared.
All that happens is that where
the. preliminary decree is varied one way or the other, the final
decree which is entirely depending on the preliminary decree
stands varied by its own terms in accordance with the terms of
the preliminary decree passed in appeal.
It is the duty of the
executing court when it is executing the final decree passed in the
meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final
decree.
Of course, if the appeallate court when deciding the.
appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried
out. . Ramnath's case(') was of this latter kind.
There the
appellate court directed the preparation of a fresh preliminary
decree in accordance with its judgment.
In such a case it may be
said that as there had to be a new preliminary decree in accordance with the direction of the appellate court, a new final decree
in accordance with the new preliminary decree might have to be
prepared.
But where there are no specific directions of the appellate court with respect to the preparation of a new preliminary
decree, and all that the appellate court orders is merely a variation
in the amount for redemption-be it more or less than that provided in the preliminary decree--, it is in our opinion the duty
of the executing court to see when it is asked to execute a final
decree prepared in the meantime that the modifications made by
the appellate court in the allpeal from the preliminary decree are
given effect to during the execution proceedings.
As we have
said already, the language of the final decree in form 6 is such that
it requires no modification even though there might be modifications in the preliminary decree by the appellate court, and all
that is required is that the executing court should in executing the
final decree prepared in the meantime give effect to the decree in
appeal from the preliminary decree, if it is a case of variation one
way or the other.
The only exception to this principle is a case
where the appellate court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the
decree in appeal from the preliminary decree.
In such a case a
fresh preliminary decree may have to be drawn up to be followed
by~a fresh final decree.
The present however is not a case of this
kmd as already indicated, and in the circumstances it was the duty
of the executing court, when variations made by the appellate
court in appeal from the preliminary decree were brought to its
notice, to take them into account in executing the final decree,
which had been prepared in the meantime.
The final decree in
terms required no change in view of form 6 already referred to
and all that the executing court had to do was to take note of the
fact that the supporting preliminary decree had been varied and
I) .. L.R. [1947] All. 40,
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SJTAL PARSHAD v. KISHORlLAL (Wanchoo, J.)
113
to execute the final decree in accordance therewith.
In this view
of the matter we are of opinion that the view taken in Periakaruppan Chettiar's case(') is correct subject to what we have said
with respect to the case where there are specific directions by the
appellate court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for
payment.
We do not think it necessary to refer in detail to other cases
cited before u~. It is enough to say that the Andhra Pradesh
High Court has followed the Madras High Court : [see Gandavaraup Venkata Subba Rao v. Vavilal Kesavayya( 2)] while the
Calcutta High Court in Abdul Jalil v. Amar Chand Paul( 8 ) and
the Lahore High Court in Mewa Singh v. Tara Singh(') seem to
take the view that a fresh final decree is necessary within three
years of the appellate decree in an appeal from the preliminary
decree in a case of modification.
In the view we have taken the apepal fails and is hereby dis•
missed with costs.
Y.P.
(I) l.L.R. (1947) Mad . .132.
(3) (1913] XVIII Cal. L. J. 223
Appeal dismissed.
(2) A.J.R. [1955) A.P. 254.
(4) A.l.R. [1933] Lah, 859.