Dawson-Miller, C.J.This is an application for leave to appeal to His Majesty in Council from a decree of this Court affirming a decision of the Court below on a question of limitation and the point for determination is whether there is or is not a substantial question of law for decision by a higher tribunal. The question in the case is whether the period of limitation for executing a mortgage decree runs from the date when the decree of the lower Court was made final in 1922 or from the date when the appeal from the preliminary decree was dismissed by this Court in 1925. The application for execution is within time if the period of limitation runs from 1925, it is but of time if the period of limitation runs from 1922. The question arises under Article 182, Schedule 1, Limitation Act, which provides that the period for the execution of a decree such as that in question 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. It is well established that the decree of the trial Court merges in the decree of the appellate Court and the only question is whether it is the preliminary decree that was sought to be executed or the final decree passed in pursuance of the preliminary decree in the year 1922. It is further well established that the test in such, cases is whether the decree of the appellate Court imperils the validity of the decree it is sought to execute. There can be no doubt that the appeal to the High Court from the preliminary decree, had it been successful, would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only act appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which after all is merely part of the machinery prescribed for carrying out the direction for sale contained in the preliminary decree. In these circumstances it seems to me upon the decided cases and upon the established principles that there is no real substance in the objections taken by the appellant to the decision of this Court. I merely wish to say that the point which is now taken has not, so far as I am aware, ever been directly decided by any decision of this Court or in any of the other Courts in India, but the matter seems to me to be so well established upon the principles which have been laid down in Such cases that I cannot help feeling that there is really no substantial question of law for decision by a higher tribunal. If, however, I am wrong, then the matter can easily be set right on an application to the proper quarter. Taking the view I do I am bound to hold under the provisions of Section 110, Civil P.C., that there is no substantial question of law for determination in this case.

2. A further objection was taken on the ground that the decree was invalid as it has been passed against two dead persons. The Subordinate Judge in the trial Court dealt with this matter pointing out that it was clearly a clerical error that their names appeared in the decree and that in fact their heirs have been substituted during the pendency of the trial. This Court did not think it necessary to deal with that point because it would still be open to the parties to deal with it hereafter in execution proceedings, the proceedings in which the point had been raised having been already dismissed.

3. The respondents are entitled to their costs; hearing fee five gold mohurs.

Mullick, J.

4. I agree.