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PETITIONER: SITAL PARSHAD

       Vs.

RESPONDENT: KISHORILAL

DATE OF JUDGMENT: 06/03/1967

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1967 AIR 1236            1967 SCR  (3) 101

ACT: Code  of  Civil procedure, 1908 (Act 5 of  1908)  O.  XXXIV- Preliary decree made final while appeal pending-Variation in appeal.

HEADNOTE: The respondent obtained a preliminary decree in 1952 against the  appellant for the sale of the mortgaged  property.   He appealed to the  Court for interest and costs which was  not allowed  in  the prelitry decree.  The  appellants  did  not appeal   against  the  preliminary  fee.   On   respondent’s application, the preliminary decree was made in 1954.  While execution proceedings were pending, the respondent’s  appeal was  allowed in 1956 in respect of the interest  and  costs. 960  the appellant objected under s. 47 C.P.C., that  as  no final fee. had been prayed for and passed after the judgment of the High court in appeal and as more than three years had passed  since the judgment of the High Court, there  was  no final  decree  to  be executed, as  decree  which  had  been prepared  in 1954 on the basis of which union was  going  on must  be held to have no force and effect after judgment  of the High Court making a variance in the preliminary ee.  The respondent contended that it was not necessary to a apply  a fresh  final decree after the judgment of the High Court  in appeal that the final decree already passed in 1954 remained good  and  was  suitable.   The  appellant’s  objection  was rejected.  In appeal, this it. HELD : The appeal must fail. Where  a preliminary . decree has been reversed  in  appeal, the  final  fee  must fall to the ground  for  there  is  no preliminary  decree  therein  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 final decree.   If an execution petition is made on such  a  final decree  though  more than three years after  the  decree  in appeal has been raised, the defendant has simply to ask  the court  where the execution ton is made to refuse to  execute the  decree on the ground that the minary decree in  support of  it has been set aside.  In such a case the duty  of  the executing  court  to take note of the fact that  the  minary decree in support of the final decree has been reversed  and

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could  refuse  to execute the final decree even  though  the fact is right to its notice more than three years after  the decree  in  appeal repairing the preliminary decree  and  no question of limitation arises. G-107 C] Where  the  decree  in appeal from  the  preliminary  decree confirms  it into, the final decree already passed needs  no change  and  must contend to stand.  It is true that  if  no final  decree  has  been  passed  before  appeal  from   the preliminary decree is decided, the decree-holder gets  years from  the date of the decree in appeal from the  preliminary fee 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 final from the preliminary decree  in order  apparently not to compel older to apply for  a  final decree if he does not wish to do 102 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 mean time and if the 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 final decree and can execute the final decree already passed 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 be brought to the notice of the appellate court and it is the  duty  of the appellate 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   trial  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 so, the original time granted for the purpose must stand. where 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 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  It  is  not obligatory  on  a court of appeal to fix 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. [110 B-111 C] Where  the  amount decreed is increased, as in  the  present case,  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 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 some  time for  the purpose in the interest of justice.  But it is  not bound  to  do so and it does not do so,  the  original  time fixed  in  the  preliminary decree stands  even  though  the amount  for redemption may have been reduced.  There  is  no harm to the defendant mortgagor in such a case, for, under O XXXIV  r. 5(1) the mortgagor would have time up to the  date confirmation  of  sale to deposit the amount  and  save  the

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property. (111D-G] Even  where  there has been a variation in the  decree,  the final  decree if passed in the meantime, requires no  formal amendment  in view of the form in which a final  decree  for sale  is  prepared.   All that happens  in  that  where  the preliminary decree is varied one way or the other, the final decree which is entirely dependent 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 appellate   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.  Where there are. no specific directions of the  appel- late  court  with  respect  to the  preparation  of  it  new preliminary decree, and all that the appellate court  orders is  merely a variation in the amount for redemption,  it  is duty  of  the executing court to see when it  .is  asked  to execute a final decree prepared in the meantime that the  103 modifications made by the appellate court in the appeal from the  preliminary  decree  are given  effect  to  during  the execution proceeding% [111 H-112 E] in the circumstances of the present case it was the duty  of the  Executing court, when variations made by the  appellate court in appeal form 6 and all that the executing court  had to  do  was to take note of account in executing  the  final decree.’ which had been prepared in the meantime.  The final decree  in  terms  required no change in view  of  from  the preliminary decree were brought to its notice, to take  them into  the  fact that the supporting preliminary  decree  bad been  varied and to execute the final decree  in  accordance therewith. [112 G-H] Perikaruppan  Chettiar  v. Venugopal Pillal,  I.L.R.  [1947) Mad.  132; Rukhmabai v. Krishnarao, I.L.R. [1952]  Nag.  243 and  Gandavaraup  Venkata Subba Rao  v.  Vavilal  Kesavayya, A.I.R. [1955] A.P. 254; proved. Ram Nath v. Deoki Nand Krishna, 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.  [1933]   Lab.   859; disapproved. Muhammad  Sulaiman Khan v. Muhammad Yar Khan, I.L.R.  [1888] 11  All. 267; Jowad Hussain v. Gendan Singh, (1926) 53  I.A. 197  and Fitzholmes v. Bank of Upper India, (1926) 54  I  A. 52; referred to.

JUDGMENT: 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  res- pondent. 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 obtained a preliminary decree  in  a

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mortgage suit against the appellants on March 13, 1952.  The decree  was  for  sale of the mortgaged  property.   As  the preliminary decree did not allow interest to the  respondent from  the  date of the suit to the date of  the  preliminary decree,  he filed an appeal to the High Court in  that  con- nection.  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  0.XXXIV  r. 5, of the Code of  Civil  Procedure.   On August 18, 1954, the respondent took 104 out  execution of the final decree.  On December  17,  1956, while the execution proceedings were pending, the respondent holder’s  appeal in the High Court was allowed and the  High Court allowed interest to the respondent.  On April 2, 1960, the  appellants  objected under s. 47 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 passed since the judgment of  the High Court, there was no final decree to be executed, 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  certificate  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 Rant Nath v. Deoki Nand Krishna(1).  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 Prepared  which  was done.  The decree-holder never applied for the execution  of the final decree which had been prepared earlier to bring it in  conformity  with the decree of the appeal court  or  for preparation of a fresh final decree latter however more than three  years after the judgment in appeal the decree  holder applied  for amending the final decree so asked to bring  it in  accord with the preliminiary decree passed by  the  real court  had  been varied pared fell to the ground  and  could which   had  already  been  premade  consistent   with   the priliminary   not be executed until it was late court  or  a fresh  final  decree  was prepared  in  accordance  with  it further ask the application for amendment was made more (1) I.L.R.[1947] All 40. 105      than three years after the judgment of the appeal court it was barred by art. 181 of the Limitation Act. . The leading case on the other side is Perikaruppan  Chettiar

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v.Venugopal Pillai(1).  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  the 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  question before us in the present appeal  therefore  is which  of  these two views is correct.  Before  we  consider this   question   we   many   state   certain   well-settled propositions  with respect to preliminary and final  decrees in  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 (1) I.L.R. [1947] Mad. 132. M4 SupCI/67--8 106 therefore  it is well-settled that only the appellate  court can  amend  the decree thereafter : [see  Muhammad  Sulaiman Khan  v. Muhammad Yar Khan(1)].  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 Jowad Hussain v. Gendan Singh ( 2 ) J. This applies even  to a case where the decree of the appellate court is made  more than  three  years after the time fixed for payment  in  the preliminary decree : [see Fitzholmes v. Bank of Upper  India (3)  ]. Further it is well-settled that the mere  fact  that

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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 ( 4 ) ]. 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(5)].   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 final 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 (1)  I.L.R. (1888) 11 All. 267. (3)  (1926) 54 I. A. 52, (2)  [1926] 53 I.A. 197. (4)  I.L.R. [1931] LXII All 283. (5)  I.L.R. [1930) LVII Cal. 1013. 107 the  court for setting aside the final decree  within  three years because the preliminary decree has been reversed,  the decree-holder  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 has 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 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 reversing  the  preliminary decree.  In such a case  in  our opinion no question of limitation arises. Now  take the second case where the preliminary  decree  has been confirmed in  toto  and a final decree passed  on  such decree already exists.   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  judgement  of the appellate  court  confirming  the preliminary decree in toto.  Reliance in this connection  is

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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 time for payment and this observation seems to suggest  that where  the preliminary 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 could be asked  for  within three   years  of  the  judgment  of  the  appellate   court confirming  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 determining the question before  us. To determine this question we have to look to the provisions of  0.  XXXIV of the Code of Civil Procedure  providing  for preli- (1)  [1926] 54 I.A. 52. 108 minary and final decrees.  Preliminary decree in a suit  for sale  with  which we are concerned in the  present  case  is prepared  under  O. XXXIV 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 for 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 him 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 tinder 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,  retransfer the  property  to the defendant at his cost  free  from  the mortgage  and  from  all encumbrances, 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, expenses and interest, and  the balance, if any, be paid to the defendant or  other

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persons entitled to receive the same. It  wilt 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  amount  together 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 109 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.  ( 1) of r. 4. Further under 0. XXXIV r. 5 ( 1 )  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 carries 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,  it 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 sate 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.  10,               together with such subsequent interest as  may               be  payable  under r. 1 1 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   dependent  upon  the   preliminary   decree. Therefore where the preliminary decree has been confirmed in toto and the appeal there form has been dismissed, there  is no change whatever to be made in 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

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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 110 decree  supersedes  that decree.  But where we  are  dealing with a decree passed in appeal from a preliminary decree and the  final decree has already been passed in  the  meantime, the  decree  of  the  appellate court  on  appeal  from  the preliminary  decree only supersedes the preliminary  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 limitation and courts have held that in such a case three years run from the  date of the decree in appeal from the preliminary decree in order apparently  not to compel the decree-holder to apply  for  a final  decree  if lie 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 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 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(1) 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  preliminary 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 (1)  I.L.R. [1930] LVII Cal. 1013. 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

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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 fix 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  defen- dant  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 redemption 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,  the original  time fixed in the preliminary decree  stands  even though  the  amount for redemption may have been  reduced  : [see Rikhmabai’s case(1)].  Nor do we think that any serious harm  is done to the defendant mortgagor in such a case  for under  0. XXXIV r. 5(1), even though no fresh time may  have been  fixed  by the appellate court whether 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, (1)  I.L.R. [1952] Nag. 243. 112 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 appellate 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(1) 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

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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  pro- vided  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 appeal 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  kind  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 L R. [1947] All. 40. 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(1) 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 us.  It is enough to say that the  Andhra Pradesh High Court has followed the Madras High Court : [see Gandavaraup Venkata Subba Rao v. Vavilal Kesavayva(2)] while the Calcutta High Court in Abdul jalil v. Amar Chand Paul  ( 3 ) and the Lahore High Court in Mewa Singh v. Tara Singh(4) 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 appeal fails and  is  hereby dismissed with costs. Y.P                                 Appeal dismissed. (1)  I.L.R. [1947] Mad. 132. (3)  [1913] XVIII Cal.L.J.223 (2)  A.I.R. [1955] A.P. 254. (4)  A.I.R. [1933] Lah. 859. 114