JUDGMENT
1. A preliminary decree for sale of property was passed by the first Court of the Subordinate Judge of Mainpuri on the 15th of April 1921. The defendant mortgagor appealed against this decree, to this Court on the 22nd of July 1921. While the appeal was pending the mortgagee applied under Order XXXIV, Rule 5(2) of the C.P.C. for a final decree for sale and such a final decree was passed by the Subordinate Judge on the 19th of August 1922. The appeal to this Court was dismissed with costs on the 13th of February 1924.
2. The mortgagee applied to the Court of the Subordinate Judge for execution of the final decree dated the 19th of August 1924 and to the amount of that decree he added the amount of costs granted by this Court under its decree dated the 13th of February 1924. The lower Court directed execution f to take place though, the judgment-debtor objected on the ground that the final decree of the 19th of August 1922 was not one binding between the parties as it was obtained on the basis of a preliminary decree which had not become final between the parties.
3. This is an appeal from an order in the execution department passed by the Subordinate Judge for the sale of property. The first ground of appeal raises the objection that the final decree of the 19th of August 1922 had been obtained before the preliminary decree between the parties became conclusive and so no execution proceedings can be taken on the basis of that final decree. We think that this argument must prevail on the basis of the Full Bench decision of this Court in Gajadhar Singh v. Kishen Jhuan Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734. It was held in that case by three learned Judges of this Court that the right of the plaintiff in a suit for sale to apply for a final decree accrued when the decree of the High Court was passed and not on the expiry of the six months allowed for payment by the Court of at instance. The learned Judge, Mr. Justice Banerji, who delivered the judgment of the Court reconsidered a decision he had previously delivered as a member of a Bench of two Judges in Madho Ram v. Nihal Singh 30 Ind. Cas. 494 : 38 A. 21 : 13 A.L.J. 985. The learned Counsel for the respondent here desired the Court to hold that the Fall Bench judgment only covered the question of limitation and that a mortgagee was at liberty to apply for a final decree either on the basis of the preliminary decree of the Trial Court or on the basis of the preliminary decree of the High Court in appeal. This argument is specifically negatived by the learned Judge, Mr. Justice Banerji. He said "It seems to me that Order XXXIV, Rule 5 of the C.P.C. contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the Appellate Court which is the final decree in the cause". It is clear, therefore, that there can be only one final decree in a suit for sale and not more than one and that this final decree can be passed only after the preliminary decree has been confirmed or varied by, this Court in appeal. The learned Counsel for the respondent further argued that though the mortgagee may not have the right to apply for a final decree there was an inherent jurisdiction in the Court1 to grant such a decree even wrongly. According to him, therefore, the final decree of the 19th of August 1922, is binding between the parties and the mortgagee is en-, titled to execute it. The simple answer to it is that the mortgagee does not come merely on the basis of that decree as having been passed in his favour rightly or wrongly. He includes in his application for execution the costs awarded to him by the High Court as well and it is clear that he has in contemplation the correct final decree which ought to be passed in the suit. Such a correct decree has not yet been passed so there can be no question of its execution.
4. The Bench ruling in the case of Dambar Singh v. Kallyan Singh 65 Ind. Cas. 799 : 20 A.L.J. 170 : (1922) A.I.R. (A.). 27 : 44 A. 350 referred to by the respondent's learned Counsel does not apply here. In that case application was made for a final decree for sale after the preliminary decree had received final adjudication from this Court and the right had accrued to the decree-holder to apply for a final decree. Through some mistake the decree-holder did not include the costs of the two Appellate Courts in his application for a final decree and in substance the final decree embodied the terms of the preliminary decree of the Trial Court. In the present case, the final decree was obtained when the right had not accrued to the decree-holder to apply for one. Secondly, in the other case, execution had once before been taken out of the final decree to which the judgment-debtor had made no objection, and had actually paid a portion of the decretal amount. Objection was taken when, execution was taken out for a second time and the principle of res judicata was applied against the judgment-debtor, because, to quote the words of the learned Judges "when the first application for execution was made he did not raise this objection." In the case before us it is the first execution of the final decree which is objected to and stay of execution in the Trial Court at the request of the judgment-debtor did not imply an acceptance of the decree by him.
5. There will be no hardship to the respondent in applying for a final decree on foot of the preliminary decree of this Court of the 13th of February 1924 because the application will still be within limitation.
6. In the result we decree this appeal and reject the respondent's application for execution of the final decree of the 19th of August 1922. Having regard to the circumstances of the case we pass no orders as to costs.