An appeal against one decree in a suit saves limitation for execution of another decree from which no appeal was filed under Article 182(2) of the Indian Limitation Act, 1908.

GOPAL RAO EKBOTE, J.

( 1 ) THE question which has to be answered in this Letters Patent Appeal, is, where tow distinct decrees are passed in a suit and an appeal is preferred against only one of them, can it be said that it is an appeal against a portion of the decree in a suit and the final decree in such appeal would save limitation for execution of the other decree from which no appeal was filed under Article 182 (2) of the Indian Limitation Act, 1908.

( 2 ) THE facts which give rise to this problem may briefly be stated. The appellant filed O. S. No. 476 of 1944 for possession of about 1 acre and 60 cents of land and in the alternative for partition of the same into three equal shares and for separate possession of one such share. The 1st defendant in the suit is the plaintiffs father and the 2nd defendant is his only brother. The 3rd defendant obtained a sale deed D/- 14-6-1944 from the 1st defendant for a consideration of Rupees 1500/ -. The plaintiff contended that the sale was not binding on him.

( 3 ) ON 31-3-1947, a preliminary decree was passed by the trial Court declaring that the plaintiff is entitled to a one-third share in the suit property. it directed the appointment of a Commissioner to partition of the properties into three equal shares and for delivery of possession of one such share to the plaintiff. it further ordered that the plaintiff was entitled to mesne profits calculated at 3 bags on his share from defendants 1 to 3. It also direct that the future mesne profits would be determined on a separate application.

( 4 ) THE 3rd defendant carried the matter in appeal to the Subordinate Judges Court. Machilipatanm. The plaintiff filed a memorandum of cross-objections. The learned Subordinate Judge held that the property sold to the 3rd defendant was the self-acquired property of the father of the 1st defendant. He therefore allowed the appeal and dismissed the memorandum of cross-objections. The plaintiff then filed Second Appeal No. 1572 of 1949 in the High Court. The High Court allowed the Appeal on 1-7-1955 and restored the decree of the trial Court. The preliminary decree passed by the trial Court was thus finally upheld.

( 5 ) AFTER the second appeal was disposed of the plaintiff filed tow applications in the trial Court I. A. No. 2532 of 1955 was filed to partition the property according to the preliminary decree and to allot two shares to the plaintiff on the ground that he became entitled to the 2nd defendants share as the 2nd defendant, the plaintiffs mother as well as the 1st defendant, had died during the pendency of the second appeal.

( 6 ) THE second application was I. A. No. 2320 of 1955 for the ascertainment of mesne profits of the two third share belonging to the plaintiff. Since the 3rd defendant was set ex parte, the decree for mesne profits was passed in favour of the plaintiff on 2-1-1956.

( 7 ) THE 3rd defendant filed an application to set aside the said ex-parte decree passed for mesne profits. it was, however, dismissed. C. R. P. No. 1372 of 1956 filed against that order refusing to set asiee the ex-parte decree was also dismissed by the High Court on 26-9-1958.

( 8 ) IN the meanwhile I. A. No. 2532 of 1955 was allowed and a final decree allotting two one-third shares to the plaintiff on 23-2-1956 was passed. The 3rd defendant filed. A. S. No. 65 of 1956 in the Subordinate Judges Court. Machilf patnam challenging this final decree. The appeal was however dismissed on 21-3-1957. Second Appeal No. 992 of 1957 was then filed by the 3rd defendant in the High Court. manoher Pershad J. dismissed the said second appeal on 15-2-1961.

( 9 ) THE decree-holder appellant filed E. a. No. 12424 of 1960 asking the Court to transmit the decree for mesne profits to the District Munisfs Court. Afanigadda for execution alleging that the judgment debtors properties which he intends to sell are situated within the jurisdiction of the Avanigaddda Court. On an objection regarding limitation raised by the jud

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