Chatterji, J.This is an appeal by the judgment-debtor against an appellate order rejecting his objection u/s 47, Civil P.C. The decree under execution is a final decree for mesne posts passed under the provisions of Order 20, Rule 12(2), Civil P.C. After the preliminary decree had been passed, a Commissioner was appointed by the Court to ascertain the mesne profits. The Commissioner submitted his report which was accepted by the Court on 6th January 1936, and the Court passed the following order on that date:

The Commissioners report is put up. Let final decree be prepared in terms of the Commissioners report. The plaintiff shall get costs on ex parte scale and Pleaders fee Rs. 2&frac per cent. No decree, shall be prepared unless defioit court-fees are filed.

2. The plaintiff apparently remained idle for a long time, and on 10th September 1938, he filed a petition praying for assessment of deficit court-fee and for preparation of the final decree. On that application the Court passed an order on 26th October 1938, directing the plaintiff to pay definite court-fee of Rs. 127-8-0 by 19th November 1938. The plaintiff, however, did not deposit the deficit court-fee until 1st December 1938. Then on 3rd December 1938, the following order was passed: "Deficit court-fee stamp filed. Let final decree be drawn up now." The decree was actually drawn up on 30th January 1939, and it was signed on 8th February 1939.

3. The application for execution was filed on 17th January 1940. The judgment-debtor took the objection that the execution was barred by limitation as it was filed more than three years after the date of the decree. This objection found favour with the learned Subordinate Judge but on appeal the learned District Judge overruled it and allowed the execution to proceed. The judgment-debtor accordingly has come up in second appeal.

4. Mr. B.C. De on behalf of the appellant contends that the period of limitation must be computed from the date of the decree under Article 182 of Schedule. 1, Limitation Act, and the date of the decree is the date of the judgment under Order 20, Rule 7, Civil P.C. As the final judgment was passed on 6th January 1936, that date must be taken to be the date of the decree, and therefore, the execution must be held to be barred by limitation. Mr. De relies on the decisions of this Court in Surajdeo Narain Singh v. Musahroo Raut AIR 1916 Pat. 235 and Hira Lal Sahu v. Jamuna Prasad AIR 1920 Pat. 111 and on the decisions of the Calcutta High Court in Bhajan Behary Shaha v. Gjirish Chandra Shaha 1913.17 C.W.N. 959 and Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, .

5. In Surajdeo Narain Singh v. Musahroo RautA.I.R. 1916 Pat. 235 the decree under execution was a redemption decree. The judgment was pronounced on 27th July 1909, but the decree was not actually signed until 23rd February 1910, because in the meantime a Commissioner had been appointed to ascertain the exact amount due under the decree. The application for execution was filed on 29th January 1913, that is to say, within three years of the date of the signing of the decree, but beyond three years from the date of the judgment. It was contended that limitation should run from the date on which the decree was actually signed, but this contention was negatived by this Court. Their Lordships held that the date of the decree must be the date of the judgment as provided in the Civil P. C.

6. In Hira Lal Sahu v. Jamuna Prasad AIR 1920 Pat. 111 the judgment was dated 1st May 1915, but the decree was not signed until 15th May 1915. The application for execution was filed on 13th May 1918. It was held that the application was barred by limitation because the date of the decree was the date of the judgment under Order 20, Rule 7, Civil P.C.

7. In Bhajan Behary Shaha v. Gjirish Chandra Shaha (13) 17 C.W.N. 959 the decree under execution was a decree passed in suit for accounts. Under that decree the deficit court-fee was required to be paid. The application for execution was filed within three years from the date of payment of the court-fee, but beyond three years from the date of the decree. Sir Lawrence Jenkins C.J. who delivered the judgment in that case said:

Article 182, Limitation Act, by which limitation in this case is governed, provides that the period for the execution of the decree is three years from the date of the decree. The date of the decree is that which is indicated in Section 205, Civil P.C. of 1882 and Order 20, Rule 7 of the present Code. It is provided by this rule that the decree shall bear date the day on which the judgment was pronounced.

8. In this view, the application was held to be out of time.

9. In Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, the decree under execution was a partition decree. It was passed on 25th March 1914, but as the plaintiff delayed in filing the stamp duty the decree was not actually drawn up until 2nd January 1920. The application for execution was filed on 21st July 1920. It was contended on behalf of the decree-holder that as the decree could not be drawn up until the necessary stamp duty was paid, limitation should run from the date of the signing of the decree, but their Lordships held that the date of the decree was 25th March 1914, on which the judgment was pronounced and, therefore, limitation should run from that date.

10. All these decisions thus clearly establish that for the purpose of computing limitation under Article 182, Limitation Act, the date of the judgment should be taken to be the date of the decree, as provided under Order 20, Rule 7, Civil P.C. In this case there can be no doubt that the final adjudication between the parties regarding the amount of the mesne profits was given on 6th January 1936. That date must, therefore be taken to be the date of the decree. Mr. S.K. Mitter on behalf of the respondent lays stress on the last portion of the order of 6th January 1936, that is, "no decree shall be prepared unless deficit court-fees are paid," and he argues that something more was necessary to be done by the Court in order to pass the final decree. It is said that the final decree was really passed on 3rd December 1938, and that the order of 6th January 1936, was in the nature of an interlocutory order. There is no substance, to my mind, in this argument. Decree, as defined in Section 2(2), Civil P.C., means

the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Then there is the following explanation:

A decree is preliminary when further pre-ceding have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

11. The matter in controversy between the parties was the amount of the mesne profits. That was finally determined by the order dated 6th January 1936. The amount being determined, the question of the court-fee payable was a matter of mere calculation with reference to the provisions of the Court-fees Act. No further adjudication by the Court was necessary in order to determine the amount of the court-fee. What the Court meant by saying that "no decree shall be prepared unless deficit court-fees are paid" was that the formal drawing up of the decree should be postponed until the court-fee was paid. Nothing more remained to be decided by the Court. The moment the plaintiff paid the deficit court-fee in accordance with this order, the decree would have been automatically drawn up. The order dated 3rd December 1938, "Let final decree be drawn up now" did by no means determine any matter in controversy between the parties. After the order of 6th January 1936, it only remained with the plaintiff to pay the court-fee. I have, therefore, no hesitation in holding that the order passed on 6th January 1936, was the final decree.

12. Mr. Mitter relies on the case in Jotindra Mohan Tagore v. Bejoy Chandra Mahatap 1905.32 Cal. 483, in which the point for consideration was quite different. After a final decree for partition was passed, but before it was actually prepared and signed, an application for adding some party was made. Their Lordships held that u/s 32, Civil P.C., 1882, (Order 1, Rule 10 of the present Code) the Court had power to add a party because the suit had not yet been finally disposed of "What their Lordships actually meant was that the Court had seisin of the case until it had actually signed the decree and therefore, it had power to add a party u/s 32 of the old Code. This case can be of no assistance in deciding the question whether for the purposes of Article 182, Limitation Act, the period of limitation should be computed from the date of the decree which means the date of the judgment or the date when the decree was signed.

13. Mr. Mitter, next relies on the case in Babu Ram Vs. Gopal Sahai, , a case on which the learned District Judge has based his decision. In that case a decree was passed on condition that the necessary court-fee was deposited. The decree-holder deposited the court-fee after three years of the decree. This was accepted by the Court, and then he sought to Execute it. The judgment-debtor took the objection that the execution was barred. Their Lordships overruled this objection, holding that the decree was not complete until the payment of the court-fee and that until that date there was no decree which could be executed. In that case the decree was a conditional decree and their Lordships were perhaps right in holding that until the condition was satisfied the decree was not capable of execution. But in the present case it cannot be said that the decree in question was a conditional decree. The first part of the order of 6th January 1936, makes it quite clear that the final decree was passed. The condition that the decree should not be prepared unless the deficit court-fee was paid merely meant that the formal drawing up of the decree was to be postponed until the payment of the court-fee. It did not in any way change the final and conclusive nature of the decree.

14. Reliance is also placed on Khudadad v. Moriokhan AIR 1916 Sind 2 which is a decision of the Sind Judicial Commissioners Court. In that case the Court gave a judgment but refused to give a decree till the successful party complied with a certain condition. It was held that the effect of such an order was to pronounce a provisional judgment which did not become operative until the decree was prepared and that the latter date was the date of the judgment as well as of the decree from which limitation for the purpose of execution would run. The question really turned on whether there was a complete adjudication of the matters in controversy. In that case it was held that there was no such adjudication until the condition was satisfied. In the present case as I have already said, there was a final and complete adjudication on 6th January 1936.

8. It is argued by Mr. Mitter in the alternative that the application which was made by the plaintiff on 10th September 1938, for assessment of deficit court-fee and preparation of the final decree was a step-in-aid of execution. To this contention a complete answer is afforded by the decision of Sir Lawrence Jenkins in Bhajan Behary Shaha v. Gjirish Chandra Shaha 17 C.W.N. 959, which I have already quoted. His Lordship said:

As an alternative it is suggested that the payment of the fee was a step-in-aid of execution. But I cannot so regard it. It was merely a proceeding for validating the decree in favour of defendants 14 and 15 and in no sense a step in execution or in aid of execution.

9. A step-in-aid of execution implies that there is already a decree which can be executed and in furtherance of which the step is taken. In the present case the payment of the deficit court-fee was required to bring into existence the decree which was to be executed; nor can the application for the preparation of the final decree by any means be said to be a step-in-aid of execution.

10. Mr. Mitter relies on Uttar Chand Kapur & Sons v. Sayad Hamid AliA.I.R. 1938 Lah. 326 and Ram Narain v. Maharaj Narain AIR 1940 Lah. 337. Both these cases are decisions of single Judge. In the first case there was a decree dated 29th March 1933. for an injunction restraining the defendant from infringing copyright in certain portions of some books and also for damages, the decree for damages being subject to the plaintiffs making up the necessary court-fee. The decree also directed the defendant to extract those portions of the books which infringed the copyright and hand them over to the plaintiff. On 11th April 1933, the defendant asked for leave to deposit in Court the offending portions of the books. On 16th June 1933, the plaintiff made an application for directing the defendant to make a proper list of the number of books. The final order on this application was made on 12th October 1933. On 23rd September 1936, the plaintiff applied for execution of the money decree and asked for permission to pay the deficit court-fee which was granted. An objection being taken that the execution was barred by limitation, it was held that the decree being one, though consisting of two parts, the application filed on 16th June 1933, on which the final j order was passed on 12th October 1933, was a step-in-aid of execution. This case is thus quite distinguishable on its facts. In Ram Narain v. Maharaj Narain AIR 1940 Lah. 337 it was held that in a partition suit an application for the preparation of the final decree on the stamp paper supplied by the decree-holder should be treated as a step-in-aid of execution. No authority is cited in support of this proposition, and with all respect to the learned Judge, I do not understand how the filing of the stamp paper in order to bring into existence the final partition decree could be regarded as a step-in-aid of execution.

11. For the aforesaid reasons, I am of opinion, that the execution is barred by limitation, as held by the Subordinate Judge. I would accordingly allow the appeal, set aside the order of the District Judge and restore that of the Subordinate Judge. The appellant will be entitled to costs of this appeal and of the appeal in the Court below: hearing fee Rs. 8 in the Court below and two gold mohurs in this Court.

Rowland, J.

12. I agree. The question which has been discussed at some great length, need hardly have arisen if the Subordinate Judge who dealt with the original suit had noticed that Section 11, Court-fees Act, in no way required him to postpone the passing or the drawing up of a decree for mesne profits. What the section says is that the decree shall not be executed until the court-fee is paid. Ordinarily a Court is expected to follow the provisions of the Civil Procedure Code, which says in Section 33: "the Court after the case has been heard shall pronounce judgment and on such judgment a decree shall follow." The decree is defined in Section 2(2) and is taken to be final when the adjudication which it expresses, completely disposes of the suit. Its character as a decree depends on its conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit and I agree with my learned brother that when there was no longer any matter of controversy remaining in the suit the decree was final and we cannot accede to the contention that the order of 6th January 1936 is to be considered as having the nature of a preliminary decree and that of 3rd December 1938 of the final decree in the suit. That being so, the date of the decree under Order 20, Rule 7, can be no other than 6th January 1936. A period of more than four years elapsed between that date and the application dated 17th January 1940 to execute it.

13. As to the argument that the application to the Court to assess the deficit court-fee or to receive the deficit court-fee or to prepare and sign the decree can be considered as an application to take step-in-aid of execution within the meaning of Article 182(5), Limitation Act. I agree that we should follow the decision in Bhajan Behary Shaha v. Gjirish Chandra Shaha 17 C.W.N. 959 rather than the contrary opinions expressed elsewhere.