Judgement Two consolidated appeals from two decrees of the High Court (June 27, 1907) reversing orders of the Subordinate Judge of Moradabad (April 17 and May 5, 1906). On August 25, 1900, the respondent obtained a decree from the Subordinate Judge for sale on a mortgage against the joint mortgagors, being the appellants and one Musammat Sakina, which was made absolute on December 21, 1901. Sakina obtained an order from the High Court on March 11, 1902, setting aside the decree as against her, as the summons had not been properly served on her. On the rehearing a decree was granted by the Subordinate Judge against Sakina on August 15, 1902, which was affirmed by the High Court on November 16, 1904. On February 15, 1905, the respondent decree-holder applied for, and on November 27, 1905, the Subordinate Judge refused, an order absolute against all the defendants for the sale of the mortgaged property. He, however, made an order absolute as against Sakina alone. The respondent did not appeal from this order, but on December 21, 1905, he applied for execution of the decree against all the defendants, of whom the appellants filed objections. This application was opposed by the appellants on the grounds that the only decree to which they were parties was the original decree of August 25, 1900, and that any proceedings for execution of that decree were barred by limitation; that they were not parties to the proceedings of Sakina for reopening the case, or to the subsequent decree passed against her, and that therefore the decree could not be executed against them. The Subordinate Judge dismissed the application. He said " Next the decree-holder contends that he can count time from the decree of the Appellate Court of November 16, 1904. It has been noticed that the ex parte decree was set aside so far as Sakina was concerned. The case was reheard on the merits as between the plaintiff and her only, and the decree of August 15, 1902, was passed as between the plaintiff and her only. She appealed from this decree, and the High Court decree was confirmed between her and the plaintiff only. The defendants (objectors) were not parties to the decree of the first Court of August 15, 1902, nor to that of the High Court of November 16, 1904. She appealed from this decree, and the High Court decree was confirmed between her and the plaintiff only. The defendants (objectors) were not parties to the decree of the first Court of August 15, 1902, nor to that of the High Court of November 16, 1904. The cases referred to by the decree-holder (Nur-ul-Husam v. Muhammad Hasan, ( 1886), I.L.R. 8 Allah. 573; Basant Lal and Another v. Najin-un-nisa Bibi, ( 1883) W.N. 179; and Ram Lal v. Jagan Nath, ( 1884) W.N. 138.) are distinguishable, in that in each of them the decree itself was under question before the Appellate Court, though all the persons who were parties before the first Court were not before the Appellate Court. Here neither the decree of August 25, 1900, nor that by which it was made absolute, that is, the decree of December 21, 1901, was subject of the appeal. It may be added that while Sakinas appeal against the order refusing her application under s. 108, C. C. P., was before the Court, and again when the case was being tried on the merits so far as she was concerned, and again when the decree passed on the merits was subject of appeal to the High Court which ended in the decree of November 1(5, 1904, there was nothing that could prevent the decree-holder from putting the decree of December 21, 1901, in execution against the defendants and to have such interest in the property as was in the hands of these defendants sold. Nor, having regard to the judgment of the High Court setting aside the ex parte decree, can it be said that the whole ex parte decree was set aside. "I cannot help but hold that the application for execution as against the defendants (objectors) is beyond time from the decree of December 21, 1901. This is a case in which there were two decrees one against the defendants (objectors), the other against Sakina. "I cannot help but hold that the application for execution as against the defendants (objectors) is beyond time from the decree of December 21, 1901. This is a case in which there were two decrees one against the defendants (objectors), the other against Sakina. The latter decree may be executed in respect of the whole sum against the interest of Sakina, but the decree of December 21, 1901, is barred." Two decrees were founded on this judgment, and on appeal there from the High Court held that the original decree and the subsequent decree against Sakina could not be treated as two mutually independent decrees; that, taken together, they amounted to one decree for the sale of the mortgaged property, which was made absolute by the joint effect of the orders of December 21, 1901, and November 27, 1905, and that. the application for execution on December 21, 1905, was not barred by limitation; and directed the lower Court to proceed to execute the decree against all the judgment debtors just as if the decree against Sakina had never been set aside. De Gruyther, K.C., and Ross, for the appellants, contended that the statutory period of three years ran as regards them from December 21, 1901, the day on which the decree on the mortgage against all the mortgagors was made absolute. That was the only decree capable of execution as against them and it was barred. The other was a decree against Sakina alone ; it became final on November 16, 1904, and was made absolute with a resulting order for sale on November 27, 1905, and was executable against her but not against the appellants. Reference was made to Transfer of Property Act, ss. 88 and 89 ; art. 179 of Act XV. of 1877 ; and ss. 108,540, and 545 of the Civil Procedure Code. They also contended that as the order of November 27, 1905, refused the respondents application for an order absolute against the appellants and made it against Sakina alone and had become final, it operated as res judicata between the parties, and the High Court had no jurisdiction to question its validity. They referred to Sheo Prasad v. Anrudh Singh (( 1879) I. L. R 2 Allah. 273.) ; Ram Kirpal Shukul v. Rup Kuari (( 1883) L. R 11 Ind. Ap. They referred to Sheo Prasad v. Anrudh Singh (( 1879) I. L. R 2 Allah. 273.) ; Ram Kirpal Shukul v. Rup Kuari (( 1883) L. R 11 Ind. Ap. 37.); Bani Ram v. Nandu Mal (( 1881) L. R. 11 Ind. Ap. 181.) ; Krishna Behari Roy v. Rrojeswari Chowdhranee (( 1875) L. R. 2 Ind. Ap. 283, 286.) ; Jivaji v. Ramchandra (( 1891) I. L. R. 16 Bomb. 123.); Baikanta Nath Mittra v. Aughore Nath Bose. (( 1893) I. L. R. 21 Calc. 387.) Eddis, for the respondent decree-holder, contended that the judgment of the High Court was right, and that, under the circumstances of the case and having regard to the procedure adopted by the parties and sanctioned by the Courts, the original decree against all the mortgagors and the subsequent decree aginst Sakina could not be treated now as totally distinct and independent, the subject of separate orders for execution. They must be taken together and form only one decree, the later one giving to the respondent for the first time in the course of the litigation the right to which he was entitled of joint execution against all the mortgagors, which should be executed at one time and in one proceeding. He referred to Gopalchunder Manna v. Gosain Das Kalay (( 1898) I. L. R. 25 Calc. 594, 599, 601.), Kristnama Chariar v. Mangammal (( 1902) I. L. R. 26 Madr. 91.), and to C. C. P., s. 562. De Gruyther, K.C., replied, referring to Shamsundar v. Muhammad Ihtisham AIL (( 1905) I..L. R. 27 Allah. 501.) The judgment of their Lordships was delivered by LORD MERSEY. The substantial question in this case is whether an application for the execution of a decree absolute obtained by the respondent for the sale of some property which had been mortgaged to him by the appellants is barred by s. 4 of the Indian Limitation Act, 1877. There is also a further question, namely, whether a similar application had not already been made to the Court and dismissed on November 27, 1905, so as to make the present application res judicata. The litigation which has led up to this dispute has been very long, and it has been somewhat complicated, but the story can be told, for present purposes, in a few sentences. The litigation which has led up to this dispute has been very long, and it has been somewhat complicated, but the story can be told, for present purposes, in a few sentences. The respondent was the holder of a mortgage of the interest of the appellants and of a lady named Musammat Sakina in certain lands. The mortgage debt was a joint debt, and the mortgaged property was joint property. Default was made in payment of the debt, and thereupon the respondent instituted proceedings for the recovery of the money. He also asked for a decree that if payment were not made the property should be sold. The present appellants put in defences, but the lady failed to appear. The case was tried, and the defences were found to be untrue, whereupon a decree was pronounced against all the defendants, the judgment against the lady going by default of appearance. This decree was dated August 25, 1900, and it was made absolute on December 21, 1901. If nothing more had happened there should have been no difficulty about obtaining an order for execution of the decree. But before the decree absolute was made, namely, on Sep tember 19, 1900, the lady Musammat Sakina had bestirred herself, and had applied for a review of the judgment of August 25, 1900, on the ground that she had never been served with process., The ladys application was refused by the Subordinate Judge before whom it came. This was on May 13, 1901. The learned judge did not believe her statement that she had had no notice of the proceedings, and he was of opinion that she had been, put forward by the principal defendant in the suit, the present appellant Ashfaq Husain, in order to delay the execution. Musammat Sakina then appealed; and her appeal was allowed, the Court directing "that the decree passed ex parte be set aside so far as the appellant Musammat Sakina is concerned," and that the case should be reheard upon the merits as against her. This was on March 11, 1902. The case was accordingly set down for rehearing, and Musammat Sakina then pleaded that the plaintiff had received certain sums of money from her deceased husband on account of the mortgage debt for which he had not given credit. This was on March 11, 1902. The case was accordingly set down for rehearing, and Musammat Sakina then pleaded that the plaintiff had received certain sums of money from her deceased husband on account of the mortgage debt for which he had not given credit. This defence of payment had not been put forward by any of the other defendants, and at the hearing Musammat Sakina was unable to support it by satisfactory evidence. Accordingly judgment was given against her on August 15, 1902. She then again appealed, but the High Court, agreeing with the Subordinate Judge that her witnesses were unworthy of credit, dismissed her appeal. This was on November 16, 1904. Nothing was paid, and on February 15, 1905, the plaintiff filed an application against all the defendants in the action, asking that the decree of August 15, 1902, might be made absolute, and for an order for the sale of the property. To this the appellants filed an objection, alleging that the decree of August 15, 1902^ was passed against Musammat Sakina alone, and that the original decree of August 25, 1900, passed against the appellants, "had become extinct " by operation of the Statute of Limitation. The objection was heard on November 27, 1905, when the Subordinate Judge held that the decree of August 15, 1902, concerned Musammat Sakina only, and that therefore no order absolute could be made against the objectors on the basis of that decree. He also found that the plaintiff had already, namely, on December 21, 1901, obtained a decree absolute against the objectors, so that there were two binding decrees (namely, the decree against the objectors and the decree against Muhammad Sakina) in respect of the same mortgage. The learned judge therefore came to the conclusion that he could not help but disallow the plaintiffs application, and the application was accordingly dismissed. The learned judge, however, made a decree absolute (dated November 27, 1905) against Sakina. Later on, namely, on December 21, 1905, the plaintiff filed an application against all the defendants for execution by way of sale of the property. This application was based on the decrees of August 25, 1900, August 15, 1902, November 16, 1904, December 21, 1901, and November 27, 1905, before mentioned. Later on, namely, on December 21, 1905, the plaintiff filed an application against all the defendants for execution by way of sale of the property. This application was based on the decrees of August 25, 1900, August 15, 1902, November 16, 1904, December 21, 1901, and November 27, 1905, before mentioned. The present appellants filed an objection to this application on February 7, 1906, alleging that they were no parties to the decrees of August 15, 1902, and November 27, 1905, and that as to the decrees of August 25, 1900, and December 21, 1901, they were time-barred. These are the facts, and the first question is whether the remedy against the present defendants is statute-barred. The limitation applicable to the case is to be found in s. 4 of the Indian Limitation Act, 1877, which provides that every application made after the period of limitation prescribed therefor by the Second Schedule annexed to the Act shall be dismissed, although limitation has not been set up as a defence. The Second Schedule (No. 179) provides that the time for an application for the execution of a decree shall be three years from the date of the decree, or (where there has been an appeal) from the date of the final decree or order of the Appellate Court. The answer to the question therefore depends upon the date of the decree on which the application for execution is based. If the date of the decree is more than three years before the date of the application, then the respondents remedy is statute-barred, but otherwise not. Now the respondent originally claimed a decree against all the defendants jointly in respect of a joint mortgage debt, and he obtained on August 25, 1900, what purported to be a judgment in accordance with his claim. But it subsequently appeared that, by reason of non-service of process on one of the defendants, the judgment ought not to have been given, and accordingly the Court reopened the matter by setting aside the judgment so far as it affected the one defendant who had not been served, and directed another inquiry to ascertain whether that defendant had any defence. It might have been more in accordance with strict procedure if the Court had set aside the whole judgment and had proceeded to retry the case as against all the defendants. It might have been more in accordance with strict procedure if the Court had set aside the whole judgment and had proceeded to retry the case as against all the defendants. But it was apparently considered that such a course would involve unnecessary delay and expense, and no one objected to the procedure adopted by the Court. Thus the original judgment of August 25, 1900, was treated by the Court and by the parties as a mere step in the granting of the relief for which the plaintiff was asking and to which, as it ultimately turned out, he was entitled, namely, a decree against all the defendants jointly. The irregularity (if any) in the procedure has, in their Lordships opinion, worked no wrong and is of no real consequence. Subsequently and after many delays, for which the respondent was in no way responsible, it was ascertained that the defendant who alleged that she had not been served had no defence, and a decree was made against her. This decree, which was dated November 16, 1904, was the second step in granting to the plaintiff the relief to which he was entitled. It supplemented and completed the decree granted on August 25, 1900, and for the first time gave to the plaintiff that which would alone justify him in applying for the joint execution to which he was entitled. It is from the date of this last judgment (November 16, 1904), or rather from the date when it was made absolute (November 27, 1905),that the time under the statute began to run. It was then for the first time that the Court granted a complete decree to the respondent. It follows therefore that the plaintiffs remedy is not statute-barred. This seems to have been the view taken by the High Court in the judgment from which this appeal is brought, and in their Lordships opinion it is right. As to the second point taken on behalf of the appellants, namely, that the plaintiff is estopped in the present proceedings by the judgment given against him on November 27, 1905, upon his application of February 15, 1905, it is sufficient to say that the present application is different from the application then before the Court. As to the second point taken on behalf of the appellants, namely, that the plaintiff is estopped in the present proceedings by the judgment given against him on November 27, 1905, upon his application of February 15, 1905, it is sufficient to say that the present application is different from the application then before the Court. The application of February 15, 1905, was based on the decree of August 15, 1902, and on that alone, whereas the present application is based upon the joint effect of the two orders absolute of December 21, 1901, and November 27, 1905, made against the appellants and Sakina respectively, and which two orders are in effect one decree of the later date. Their Lordships will humbly advise His Majesty that the appeals should be dismissed. The appellants will pay the costs.