JUDGMENT Sulaiman, J.
1. A suit for recovery of money was instituted against five defendants. The first Court decreed the claim against defendants 3, 4 and 5 but dismissed it as against defendants 1 and 2. The decree of the first Court was passed on 12th May 1923. An appeal was preferred by the plaintiff from that portion of the decree which dismissed his claim against defendants 1 and 2. He impleaded defendants 1 and 2 only in the appeal and did not implead the remaining defendant 5, namely Mohan, died on 28th July 1926. On 28th October 1926, the appeal was allowed by the High Court. In the course of the judgment it was pointed out that defendants 1 and 2 were also liable. The form in which the decree was prepared was to the effect that the plaintiff's suit was decreed against all the defendants.
2. An application for execution of the decree against the heirs of defendant 5 was filed on 18th September 1928, in which it was recited that there had been two previous applications for execution on 17th January 1924 and 2nd August 1927. The judgment-debtor, among other pleas, took the objection that the application was time barred, because time began to run from the first Court's decree dated 12th May 1923. The execution Court has overruled this objection, holding that time began to ran from the date of the appellate Court's decree, viz., 27th October 1926.
3. Under Article 182 time in the case of an application for execution begins to run from the date of the decrees or where there has been an appeal, the date of the final decree or order of the appellate Court or the withdrawal of the appeal. The expression 'final decree' clearly implies that the appeal should be from the decree which is sought to be executed; or, at any rate in the appeal that decree should be impugned, so that the order passed by the appellate Court should finally incorporate the decree of the first Court. In case3 where the first Court's decree becomes merged in the appellate Court's decree, time, of course, begins to run from the date of the appellate Court's decree. That article, in our opinion does not mean that, even if an appeal has been preferred against other defendants in which the decree against some defendants who are not parties to the appeal is not challenged in any way and has, in fact, become final, the time can still be enlarged by reason of the appeal. The final decree of the appellate Court must be such a decree as amounts to a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matter in controversy as laid down in Section 2.
4. In the present case what the appellate Court obviously intended was that in addition to the decree which had been passed by the first Court in favour of the plaintiff, it gave an additional decree against defendants 1 and 2 also, As defendants 3 to 5 had not been impleaded in the appeal and were not respondents before it, the appellate Court could not pass a fresh decree against these persons who were not parties.
5. The position of Mohan is stronger still, because he was actually dead on the date when the appellate Court's decree was passed. Even if the appellate Court had intended to pass a decree against him, that decree would be a nullity and void see Radh Prasad Singh v. Lal Sahib Rai [1891] 13 All. 53, and Sripat Narain Rai v. Tirbeni Misra [1918] 40 All 423. It, therefore, seems to us that the time began to run from the date of the first Court's decree so far as defendants 3 to 5 were concerned, because as against them the final decree was only that of the first Court. There is plenty of authority of this Court in support of this view, e.g., Mashiatunnissa v. Rani [1891] 13 All. 1, and Gyan Singh v. Ata Husain A.I.R. 1921 All. 56. It appears that in some other High Courts a different view has, in some cases, been taken: vide Kristnama Chariar v. Mangammal [1903] 26 Mad. 91 (F.B.), and Satish Chandra Chaudhuri v. Girish Chandra Chakravarty [1920] 47 Cal. 813. There are, however, other cases of these very Courts laying down the contrary view. We prefer to adhere to the view which has prevailed in this Court and with which we are in full agreement.
6. The Court below has not gone into the question whether the decree-holder has been applying for execution or taking other steps in execution so as to keep alive his decree; and we do not propose to go into this question at this stage. We accordingly allow this appeal and setting aside the decree of the Court below send the case back to that Court for disposal according to law. The costs of this appeal shall abide the result, and shall be calculated on the higher scale.