The time for making a final decree in a mortgage suit runs from the date of the ultimate decree that terminates the litigation and becomes the only operative decree between the parties.

JUDGMENT

1. This is an appeal against the final decree in a mortgage suit for sale. The decree has been assaled on the ground that it was made on the basis of an applicat on under Order XXXIV, Rule 5, Sub-rule (ii), of the CPC which was presented after the lapse of the prescribed time. To test the validity of this argument, it is necessary to refer to the salient facts in this case. The prelminary decree was made on the 16th July 1914 u/s 96 of the Code of Civil Procedure, an appeal lay against this decree. Indeed, u/s 97 if an appeal was riot preferred, the defendants would not be competent to challenge its correctness in an appeal against the final decree. An appeal was consequently lodged in this Court. The appeal was heard on the merits and the Court came to the conclusion that the decision of the Trial Court could not be successfully assailed. The result was that the decision of the Trial Court was affirmed and the appeal was dismissed with costs on the 30th May 1917. On the 24th March 1920, the present application was made under Order XXXIV, Rule 5, Sub-rule (ii), in order that a final decree might be passed. The defendants urged that the application was barred by limitation under Article 181 of the Schedule of the Indian Limitation Act, inasmuch as it had been presented more than three years after the 16th July 1914, when the preliminary decree had been made by the Primary Court. The Subordinate Judge overruled this contention on the author ty of the decision in Gajadhar Singh v. Kishen Jiwan Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734. It has not been disputed before us that the contention of the appellants is opposed to the decisions in Gajadhar Singh v. Kishen Jiwan. Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734 Nizam-ud-din Shah v. Bohra Bhim Sen 43 Ind. Cas. 870 : 49 A. 203 : 16 A.L.J. 85 and Jayanti Venkayya v. Damisetti Sathiraju 64 Ind. Cas. 470 : 44 M. 714 : 41 M.L.J. 71 : 14 L.W. 180. These cases are authorities for the proposition that, when a preliminary decree in mortgage suit has been affirmed oh appeal, an application made within three years of the date of the affirmance with a view to make a final decree is within the period prescribed under Article 181 of the Schedule of the Indian Limitation Act. We have been asked to hold, however, that these cases were erroneously decided and that they are contrary to the principle recognised by the Judicial Committee in Hukum Chand Boid v. Pirthichand Lal 50 Ind. Cas. 444 : 46 C. 670 : 30 C.L.J. 71 : 17 A.L.J. 514 : 36 M.L.J. 557 : C.W.N. 721 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 36 M.L.T. 131 : 10 L.W. 416 : 46 I.A. 52 (P.C.). In our opinion, this contention is not well founded.

2. We shall assume, for the purposes of the present case, that an application to make final a decree in a mortgage suit is governed by Article 181 which provides that applications for which no period of limitation is provided elsewhere in the Schedule or by Section 48 of the Code of Civil Procedure, 1908, must be presented within three years from the date when the right to apply accrues. On behalf of the appellants, it has been contended that as by the preliminary decree the mortgagors were permitted to redeem within six months from the date of the decree, that is, on or before the 16th January 1915, the decree-holders were bound to apply to make the decree final within three years from the 16th January 1915, that is, on or before the 16th January 1918. It may be conceded that this contention is, prima facie, well founded. But that does not justify the conclusion that the appellants are entitled to succeed in their content on. We cannot overlook the events which have happened between the 16th January 1915 and 16th January 1918. The appeal preferred by the defendants in this Court had been dismissed on the 30th May 1917, and it is incumbent on the Court to consider the legal effect of the decision of this Court on the rights of the parties.

3. We may usefully recall here the lucid expo