The date of the decree for the purpose of limitation under Section 48 CPC is the date of the final order passed, not the date of the preliminary judgment. An order passed under Madras Act IV of 1938, in this case, is a fresh decree, not an amendment of the existing decree.

RAMACHANDRA IYER, J.:- These appeals relate to the execution of a money decree passed in O.S. No.208 of 1932 on the file of the Sub-Court, Devakottai C.M.A. Nos.207 and 208 of 1957 are filed by the first and the sixth defendants, (the latter of whom died during the pendency of the appeals), who were the judgment-debtors under the decree, against the orders of the Subordinate Judge of Devakottai transmitting the decree for execution by the Sub Court of Kumbakonam and allowing concurrent execution to proceed, as the decree-holder had already filed E.P. No.124 of 1951 in the Sub Court, Devakottai which is slated to be still pending. C.M.A. No.55 of 1958 is filed by the decree-holder against the order of the transferee court, namely, Sub Court of Kumbakonam, in E.P. No.68 of 1957, holding that that execution petition is barred under the provisions of S.48 C.P.C.

One of the complaints of the judgment-debtors in the former two appeals is that the order for transmission of the decree for execution by the Sub Court Devakottai, was passed without notice to them and that the learned Subordinate Judge had in addition made an observation that the decree was not barred by the provisions of S.48 C.P.C. We are of opinion that the complaint urged on behalf of the judgment-debtors in regard to these illegalities committed by the lower court is justified.

Normally, we would have set aside the order of the learned Subordinate Judge and reminded the execution applications for fresh disposal after giving notice to the concerned judgment-debtors. But subsequent events have rendered this procedure unnecessary.

As we stated earlier, in pursuance of the order of the learned Subordinate Judge of Devakottai allowing concurrent execution to proceed, an execution petition was filed for purposes of execution, in the Sub Court, Coimbatore. There was no stay of proceedings pending disposal of C.M.A. Nos.207 and 208 of 1957 in this court. The transferee court has now gone into the mater and held that the decree is barred by the provisions of Sec.48 C.P.C. As the only ground of objection to the execution is that relating to the applicability of S.48 C.P.C. learned counsel here appearing for the decree-holder as well as the judgment-debtors, agreed before us that it is unnecessary to order a remand in C.M.A. Nos.207 and 208 of 1957, as the question relating to the maintainability of the execution applications can be decided by this court itself. We therefore proceed to consider whether the execution applications have been filed in time.

2. It is necessary to set out a few facts to understand the arguments urged on behalf of the judgment-debtors that the decree is barred under the provisions of S.48 C.P.C. The suit O.S. No.208 of 1932, which was dismissed by the trial court, came up by way of appeal to this court in A.S. No.237 of 19.34. By its preliminary judgment dated 18-11-1938 this court held that the plaintiff was entitled to a decree. It appears that the original plaintiff had by then died and a succession certificate was found necessary before a decree could be passed in favour of his legal representative. Steps were taken for that purpose and on 1-9-1939 this court passed a decree in favour of the plaintiff for a sum of Rs.31,126-12-9, with subsequent interest and costs against eight persons.

In the meanwhile, Madras Act IV of 1938 had come into force. The fourth respondent in appeal applied to this court for passing a decree after taking into account the provisions of that Act. The learned judges following the practice which till then exited, remitted the application of the fourth respondent for enquiry by the lower Court and or passing a decree in accordance with the provisions of Act IV of 1938. This practice though prevalent at one time, is not sanctioned by the terms of Act IV of 1938.

It was held in Srirama Reddi v. Srirama Reddi, 1941-2 Mad LJ 855 : (AIR 1941 Mad 929) (FB), that where a debt was the subject-matter of an appeal, an application