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.
Pending the appeal, as further proceedings in the suit had number been stayed, the trial companyrt passed a final decree on.
On December 17, 1956, while the execution proceedings were pending, the respondent holders appeal in the High Court was allowed and the High Court allowed interest to the respondent.
No fresh final decree was passed on the basis of the appellate decree.
855 of 1964.
Appeal from the judgment and order dated November 7, 1962 of the Punjab High Court in Letters Patent Appeal No.
pending an Appeal from the preliminary decree, the final decree was passed.
On November 26, 1934, the appeal was allowed in part, which had the effect of reducing the amount decreed.
Thereafter the appeal was decided and the preliminary decree was modified and a fresh preliminary decree was directed to be Prepared which was done.
Brief Facts necessary for present purposes are these.
The respondent obtained a preliminary decree in a mortgage suit against the appellants on March 13, 1952.
Then the appellants came in Letters Patent Appeal which has also been dismissed.
Rameshwar Dial and A. D. Mathur, for the appellants.
As there was numberstay order passed by the High Court, for the judgment debtors had number 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.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Thereupon the judgment debtor went in appeal to the High Court companytending 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 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.
On April 2, 1960, the appellants objected under s. 47 of the Code of Civil Procedure that as numberfinal 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 numberfinal 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 numberforce and effect after the judgment of the.
As the preliminary decree did number 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 company nection.
On August 18, 1954, the respondent took out execution of the final decree.
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 companye before us.
C. Misra, M. V. Goswami and S. S. Shukla, for the res pondent.
The decree was for sale of the mortgaged property.
334 of 1961.
The appellants Judgment debtors were apparently companytent with the preliminary decree for they filed numberappeal.
September 23, 1933 on the basis of the preliminary decree passed on May 4, 1929.
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.
