JUDGMENT

1. This is a judgment-debtors' appeal arising out of the dismissal of their objections by the civil Judge of Sitapur. The facts giving rise to the appeal may be shortly stated as follows: On 25th September 1934 the respondent obtained a decree for possession and mesne profits from the Court of the Additional Subordinate Judge of Bareilly against the appellants. On 9th October 1934 he applied for the transfer of the decree under Section 39, Civil P.C., to the civil Judge of Sitapur, where the major portion of the property was situate. The respondent applied for the execution of the decree in the latter' Court for the possession of the property decreed to him. On 4th December 1934 the appellants filed an appeal in the Allahabad High Court against the decree of the Additional Subordinate Judge of Bareilly. The execution of the decree was stayed on 3rd May 1935 by the High Court on condition of furnishing security. The appeal was dismissed by the High Court on 22nd December 1939 and the stay order, dated 3rd May 1935 was consequently discharged. On 10th January 1940, the respondent applied to resume the proceedings in the executing Court at Sitapur. The appellants filed objections under Section 47, Civil P.C., urging inter alia, that the execution application was not maintainable as the decree of the trial Court had merged in the decree of the High Court, and further that the execution proceedings were barred by Section 7, Encumbered Estates Act. It may also be mentioned that the appellants had applied on 27th October 1936 under the Encumbered Estates Act and had shown the property which was the subject-matter of the execution proceedings, in that application. The learned civil Judge of Sitapur dismissed the objections. Hence the present appeal by the judgment-debtors.

2. The main contentions advanced on behalf j of the appellants in support of the appeal are two-fold. In the first place, it has been urged that the decree of the trial Court merged in the decree of the High Court and, therefore a fresh application for execution should have been filed by the decree-holder for the execution of the decree of the High Court, which alone was capable of execution, and not the decree of the trial Court which no longer existed. In support of this contention, reference has been made to Muhammad Sulaiman Khan v. Muhammad Yar Khan, ('89) 11 All. 267 (F.B.), Jowad Hussain v. Gendan Singh ,A.I.R. 1926 P.C. 93, S.M. Hashim v. J.A. Martin, A.I.R. 1927 Rang. 104 and Khairati Khan v. Munney Khan ('41) 193 I.C. 53. In Muhammad Sulaiman Khan v. Muhammad Yar Khan ('89) 11 All. 267 (F.B.) the question arose in connexion with the amendment of decree, and the Pull Bench held (Mahmud J. dissenting) that.

where a decree has been affirmed on appeal, the only decree which can be amended is the decree to be executed, and the decree to be executed is that of the appellate Court and not the superseded decree of the first Court.

4. It was further held that "the only Court which has jurisdiction to amend the appellate decree is the Court of appeal." In Jowad Hussain v. Gendan SinghA.I.R. 1926 P.C. 93, the question arose whether the application for making a final decree was time-barred under Article 181 to the schedule of the Limitation Act. This article fixes the period of limitation at three years, and the time is to run from the date when the right to apply accrues. Their Lordships of the Judicial Committee held that:

when an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree.

5. Jowad Hussain v. Gendan Singh, A.I.R. 1926 P.C. 93 was relied upon by the Rangoon High Court in S.M. Hashim v. J.A. Martin, A.I.R. 1927 Rang. 104. That case is however distinguishable upon the facts. There, a preliminary decree was passed against the mortgagor, and one of his minor sons appealed, and his application for the stay of execution was dismissed by the appellate Court with the result tha