LexSITAL PARSHAD versus KISHORILAL
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A SITAJ. PARSHAD v. KISHORILAL March 6, 1967 [K. N. WANCHOO, R. s. BACHAWAT AND v. RAMASWAMI, JJ.J B March 6, 1967 c D E F G H Code of Civil Procedure, 1908 (Ace S of 1908), 0. XXXIV-Preli-- 1ninary decree nu1de final while appeal pending-Variation in appeal- Efject. 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'reli- minary 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 respon- dent'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 re- verning 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 con- tinue 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 limita- tion 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 ·l 02 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 appellat
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