The decree modified by the High Court needed to be made final under Order 34, Rule 5 before it could be executed, and the previous order for sale operated as res judicata, precluding the appellant from raising further objections.

Krishnaswamy Ayyangar, J.

1. This appeal arises out of an order passed by the Subordinate Judge of Tenali in execution of a decree passed by the Subordinate Judge of Bapatla in O.S. No. 63 of 1922 on his file. The appellant is the legal representative of the fourth defendant in the suit which resulted in the decree now sought to be executed. The respondent is the legal representative of the decree-holder. The appellants contention in short was that there was no valid executable decree so far as he is concerned. This contention having been overruled by the Subordinate Judge he has appealed to this Court against his order.

2. In order to appreciate the question that arises for consideration in this appeal it is necessary to state a few facts. O.S. No. 63 of 1922 was instituted by one Lakshmiarayana to recover a sum of Rs. 9,282-5-4 being the balance due on a mortgage dated 1st April, 1910, executed in his favour by the husband of the first defendant in the suit. There were numerous other defendants in possession of portions of the mortgaged properties under alienations effected subsequent to the mortgage. The predecessor-in-title of the appellant was the fourth defendant. By the preliminary decree passed by the Subordinate Judge of Bapatla the fourth defendant was exonerated from the decree. The plaintiff preferred an appeal to this Court in A.S. No. 405 of 1925. On 8th May, 1934, this Court (Ramesam and Curgenven, JJ.) modified the decree of the lower Court in certain particulars. Clause 3 of the appellate decree which is the only clause relevant for the present purpose is as follows:

That the decree of the lower Court in so far as it relates to defendants 4, 7, 29, 38 and 36 as to Ex. XIII, be, and hereby is, set aside and the properties forming items 1, 13, 12, 9 and 6 mentioned in the schedule attached to the decree of the lower Court, with which the said defendants 4, 7, 29, 38 and 36 as to Ex. XIII are severally concerned be sold only after paying for the improvements effected by the said defendants on the sites.

The result was that the appellants predecessor-in-title, namely, the fourth defendant and the property in his possession were declared liable for the mortgage amount subject to the condition that he should be paid the value of the improvements effected by him. While the appeal was pending in this Court the decree-holder applied to the Bapatla Sub-Court for a final decree being passed and such a decree was actually passed on 3rd October, 1927. By this decree which followed the declarations contained in the preliminary decree of 19th December, 1924, the position of the fourth defendant was in no way affected. It is also common ground that the decree-holder did not take any steps either to obtain a fresh final decree incorporating the modifications made by the High Court or to have the final decree already passed amended so as to embody them into it. This omission furnishes the ground upon which the appellant rests his contention that there is no executable final decree in favour of the decree-holder and the order of the learned Judge is therefore wrong. In his execution petition E. P. No. 18 of 1940 which has given rise to this appeal the respondent has mentioned under column 1 under heading " Number of suit " (1) Bapatla Sub-Court file O.S. No. 63 of 1922, (2) Madras High Court file A.S. No. 405 of 1925. In column 4 headed " Date of decree " he has mentioned 8th May, 1934, as the date of the decree of the High Court in A.S. No. 405 of 1925. The contents of these columns suggest that what the respondent was seeking to execute was the decree of the High Court, which, as we have said, had resulted in certain modifications being introduced into the preliminary decree passed by the Bapatla Sub-Court. When notice of this execution petition went to the appellant, he filed a counter-petition raising the contention that the decree-holder should first obtain a final decree by the Bapatla Sub-Court and get it transferred