Judgment :- 1. This appeal is by the 1st defendant judgment debtor in execution of a decree for mesne profits and costs. 2. The decree dated August 18, 1954, of the Munsiff, Chengannur, is to the plaintiffs to recover the suit property from defendants 1 and 2 with mesne profits at Rs. 15 per annum from July 30,1947 (Karkadakom 14,1122 M. E.) until delivery of possession of the property or the expiry of 3 years from the date of the decree whichever event occurs first and six per cent interest on arrears of mesne profits. The 2nd defendant appealed against that decree to the Subordinate Judge, Mavelikara. The 1st defendant, her husband, was not made a party to that appeal (A. S. No. 302 of 1957), either as appellant or as respondent. The appeal was dismissed with costs on January 31, 1959. The plaintiffs took out execution on October 4, 1961, for recovery of the property from defendants and all costs and mesne profits from the 1st defendant personally. The property has been delivered on March 17,1962. As the plaintiffs continued execution for mesne profits upto January 31, 1962, and for costs inclusive of that allowed by the appellate decree, the 1st defendant objected that as concerns him the decree in the case is that passed by the Munsiff, unaffected by the appeal, and that therefore mesne profits beyond August 18,1957, and costs in appeal cannot be claimed against him. The Courts below concurred to dismiss" that objection, holding the reference to decree in Order XX R.12 CPC. to mean the appellate decree. The 1st defendant has come up in second appeal. 3. Order XX R.12 CPC. reads thus: "12. Decree for possession and mesne profits (1) Where a suit is for the recovery of possession of immovable property and for... mesne profits, the Court may pass a decree (a) for the possession of the property; (b) for...mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such .... mesne profits; (c) directing an inquiry as to .... mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) or (iii) the expiration of three years from the date of decree, whichever event first occurs. mesne profits; (c) directing an inquiry as to .... mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) or (iii) the expiration of three years from the date of decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the ... mesne profits shall be passed in accordance with the result of such inquiry." It is common ground that the Ist defendant's liability for mesne profits in this execution proceedings cannot extend beyond three years of the date of the decree. The dispute here is as to the date of the decree in this case. The 1st defendant's contention is that as regards him the decree in the suit is that passed by the Court of first instance, to which alone he was a party. The respondents-decreeholders contend that the decree in the suit is the appellate decree. It is conceded, and the appellate decree shows, that the 1st defendant has not been made a party thereto. It seems elementary that a decree to which a person is not a party cannot be said to be a decree against him. As the 1st defendant was no party, either as appellant or as a respondent, to the appellate decree it cannot normally be said to be a decree affecting him. If that be the correct law the 1st defendant's contention has to prevail. 4. Counsel for respondents-decree holders cited several decisions to urge that when an appeal has been decided, whether it he in affirmation, reversal or modification of the lower Court's decree, the latter would merge in the former and that thereafter the only decree in the case is the appellate decree. That proposition is unexceptionable provided the appellate decree is valid and binding on the person concerned. It is the superior force of an appellate decree that makes it supersede the original decree in the suit: if a superior force is lacking in the appellate decree it cannot surpass the force and vigour of the original decree. Counsel urged that an appeal is a continuation of the suit and that therefore after an appeal has been admitted by a competent Court its terminus can alone be the end of the suit. Counsel urged that an appeal is a continuation of the suit and that therefore after an appeal has been admitted by a competent Court its terminus can alone be the end of the suit. The simple answer to this contention is that as regards persons left out at the middle of the track the terminus is where they have been discharged. Pertinent here is the observation of a Constitution Bench of the Supreme Court in Sita Ram Goel v. The Municipal Board, Kanpur AIR. 1958 SC. 1036: "....While it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei 41 I.A. 104 or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh 53 I. A. 197. But as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal 46 I. A. 52. whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal." 5. Counsel for decree holders read to me Order XLI R.4 CPC. "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." and contended that the Munsiff's decree proceeded on grounds common to defendants 1 and 2 and therefore the appeal filed by the 2nd defendant challenging that decree must be deemed to be an appeal affecting both the defendants. Reliance was placed on the observation of Subba Rao C. J., who spoke for Bhimasankaram J. also, in Pamulapati Varadayya v. Kommareddi Chinnappareddi AIR. Reliance was placed on the observation of Subba Rao C. J., who spoke for Bhimasankaram J. also, in Pamulapati Varadayya v. Kommareddi Chinnappareddi AIR. 1956 Andhra 64: "Under R.4, if the decree appealed from proceeds on any ground common to all the defendants, any one of them may appeal from the whole decree and the court may reverse the. decree even in favour of all the defendants. The appeal, therefore, in the circumstances mentioned in the provisions, must be deemed to have been filed by one of the defendants on behalf of all the defendants." and also on Narsingh Das v. Bhairon Dan AIR. 1961 Rajasthan 81 which observed: "Now the general rule is that on an appeal by one of several plaintiffs or defendants, the Appellate Court can reverse or vary the decree of the trial court only in favour of the party appealing. 0.41 R.4 provides an exception to this general rule and gives the court power to pass an appropriate decree in favour of even the non-appealing plaintiffs or defendants where the requirement of that rule is satisfied. This requirement is that the decree appealed from should proceed on any ground common to all the plaintiffs or to all the defendants. In such a case, an appeal by one is virtually treated as an appeal by all, though they may not be parties to the appeal." It is difficult for me to accept the contention that an appeal by one defendant must be deemed or treated as an appeal by or on behalf of all the defendants having common cause with him; for, if that be so both the benefit as well as the burden of the appellate decree must fall on all such defendants. It appears obvious from the expression of R.4 of Order XLI CPC. that it is only the benefit of an appellate decree, but not the burden of it, that might accrue to persons who were not parties to the appeal but have common ground with the appellant; for the Rule empowers the Court only to "reverse or vary the decree in favour of" parties having common ground with the appellant. A variation of the decree to the detriment of the parties is not within the expression of Order XLI R.4 CPC. A variation of the decree to the detriment of the parties is not within the expression of Order XLI R.4 CPC. If an action is representative, the party represented will be visited with the result of that action, irrespective of the good or evil it carries which is not the case under Order XLI R.4 CPC. As to imposition of liability, the rule of judicial procedure is always audialteram partem (hear the other side) which means that no one is to be condemned or affected detrimentally in any judicial proceeding unless he has had an opportunity of being heard. It is otherwise for conferment of benefits. S.439 (read with S.440) Crl. PC. empowers the High Court to reverse a conviction and acquit or discharge the accused or to reduce his sentence without any notice to him, but not to enhance his sentence or to set aside his acquittal, eventhough there may be old offenders old in age who would like to live in jail for the rest of their life. Likewise seems to be the principle of R.4 of Order XLI CPC. The benefit of an appellate decree passed at the instance of one plaintiff or defendant may enure to all the plaintiffs or defendants having common ground with him, but not the burden thereunder. For enhancing or extending the liability it is essential that the person sought to be affected must have been a party to the appeal concerned. The contention that R.4 of Order XLI CPC. is a rule of representation in appeals, as S.92 and R.8 of Order I CPC. are in regard to suits, bears no merit in my view and is therefore overruled. To me the principle of R.4 of Order XLI CPC. seems to be that the respondent, whose rights under the decree have been reversed or reduced in an appeal filed by one of the plaintiffs or defendants having common cause with the other plaintiffs or defendants, cannot claim or enforce a larger right against his opponents than was conceded to him by the appellate decree eventhough the appeal was only by one of the opponents; for, as regards him (the respondent), his rights in the matter are bound by the appellate decree to which he was a party. To illustrate: Suppose a Munsiff decrees a suit on a bond against 3 defendants jointly, and on appeal by the 1st defendant alone, with the plaintiff as the sole respondent, the appellate Court, dismissed the suit finding the consideration of the bond to be the reward for a contemplated murder. Would if not be an absurd anomaly if in spite of that finding the plaintiff could execute the Munsiff's decree against defendants 2 and 3 and collect the forbidden sum from them? What is material here is that the plaintiff who seeks the Court's aid to execute the decree is bound by the appellate decree. That the defendants 2 and 3 are bound by the Munsiff's decree from which they did not appeal is of lesser significance. The plaintiff the mover must have strength of cause to reach the defendants: it matters little that his opponents have no strength to resist if reached. If the plaintiff has no strength he cannot reach the defendants at all and no question of strength or weakness of the defendants would arise. 6. Counsel for the decree holder cited Raja Bhun Indar Bahadur Singh v. Bijai Bahadur Singh 27 IA. 209 and Kadar Nath Goenka v. Nanda Kumar Singh AIR. 1925 PC. 113 where "decree" within the meaning of Order XX R.12 has been construed to be the ultimate appellate decree in the suit; but it must be remembered that in both those cases the judgment debtor concerned was party to the appellate decree. They were not cases of appeal by one party and execution against another party for mesne profits for 3 years after the appellate decree. I have already said that, as regards a party to an appeal, the decree in the suit even for purposes of Order XX R.12(1)(c) CPC. must be the appellate decree; but, as regards one who was no party to the appeal, it can only be the decree of the Court of first instance to which alone he was party. 7. The dictum in Nagendra Nath Dey v. Suresh Chandra Dey AIR. 1932 PC. 165 is easily distinguishable. It was a case of limitation for execution of a decree under Art.182(2) of the Limitation Act, 1908, and not of limit of liability under Order XX R.12 CPC. 7. The dictum in Nagendra Nath Dey v. Suresh Chandra Dey AIR. 1932 PC. 165 is easily distinguishable. It was a case of limitation for execution of a decree under Art.182(2) of the Limitation Act, 1908, and not of limit of liability under Order XX R.12 CPC. What their Lordships construed there was the expression "where there has been an appeal in the Limitation Act; and they held it to cover all cases where an appeal has been filed, no matter what the character of the appeal was or who the parties to the appeal were of whether the appeal was irregular or incompetent. If there was an appeal in a Suit, the Article said unequivocally that limitation for execution would run only from "the date of the final decree or order of the appellate Court." But, what arises for construction here is the expression "the decree" in Order XX R.12(1)(c) whether it means the decree of the Court of first instance to which the 1st defendant whose liability is in question was a party or the decree of the Court of appeal to which he was no party. Nothing said in the aforesaid case is of assistance in the very different context of the present case-except perhaps to hold that the Execution Petition filed on October 4, 1961, is not barred by limitation even as regards the 1st defendant (which is not disputed before me). 8. I have said already that a decree to which a person is not a party cannot be said to be a decree against him. It cannot be executed against him. "The decree" within the meaning of Order XX R.12 CPC. is that which is executable against the person sought to be proceeded against. None other is relevant as regards his liabilities. It follows that "the decree" relative to the Ist defendant appellant herein is that passed by the Munsiff on August 18/1954, and the limit of his liability for mesne profits is "the expiration of 3 years from the date of (that) decree." The same principle applies also 1o the costs in the appellate Court, to the proceedings wherein the 1st defendant was no party. The dismissal of an appeal with costs mulcts only the appellant therein and not her husband co-defendant in the Court below. 9. The dismissal of an appeal with costs mulcts only the appellant therein and not her husband co-defendant in the Court below. 9. In the result, this Second Appeal is allowed and in reversal of the judgment of the Court below the respondents-decree holders are held disentitled to claim mesne profits beyond August 18, 1957, or costs of A. S. No. 302 of 1957 in execution in this case against the 1st defendant, the appellant herein. The appellant must have the costs of this appeal from the respondents. Allowed.