( 1 ) THIS revision petition under S. I 15 CPC, raises the question that, when an appeal is dismissed as withdrawn by the Appellate Court on a motion made by the party concerned under Or. 23, Rule 1 CPC, can the decree of of the trial Court be said to have merged with the decree of the appellate court, and if so, should an application for amendment of the judgment and decree passed by the trial Court be made only to the appellate Court? the decision of this revision petition depends upon the answer to the said question, and it arises in the following circumstances:

( 2 ) THE petitioner filed O. S. No. 25 of 1964 on the file of the Civil judge at Kolar claiming to be the adopted, son of one Chikkasomegowd'a to whom the suit properties belonged. His case was that chikkasomegoweds (his grand-father) "took him in adoption and under a registered will dated 30-10-1948 executed by him bequeahed the suit properties in his favour and named M. Gangappa, the first defendant in the suit as Executor of the Will to manage the, suit properties during his (petitioner's) minority. It appears the said Gangappa came into, possession of the suit properties and mortgaged some of them, in favour of the third respondent Duggegowda. The petitioner, after he attained majority, brought the, said suit, for various reliefs. Having held that the aforementioned Will was valid, the petitioner was declared to be the owner of the suit properties and was also held entitled to recover possession of the suit properties which were, then in the possession of a, receiver appointed in some other proceeding. However, his case, that the mortgage created by M. Gangappa in favour of the third respondent was not binding on him was not Accepted, and it was held that the, same was binding on him.

( 3 ) DESPITE hoding that the petitioner was entitled to recover possession of the suit properties while dealing with Issue No. 5, there was no direction to that effect either in the, order portion of the judgment or in the preliminary decree. Therefore, the petitioner filed an application I. A. No. 18 on 19-12-1966 under Ss. 151, 152 and 153 CPC for amendment of the judgment and decree by incorporating the said relief therein; again on 6-1-1973 he filed another application I. A. No. 24 with a similar prayer. It may also be mentioned here) that the said Gangappa had also filed an appea to this Court-RFA No. 29|1967-against the judgment and decree in that suit and the petitioner had a,lso filed cross-objeections, and both the appeal and the cross-objections were dismissed as withdrawn by this Court on 10-11-1970.

( 4 ) THE learned Civil Judge rejected both the applications-I. As. 18 and 24-taking the view that the decree of the trial Court merged with that of the appellate Court in RFA No. 29/l967 and that the application fox amendment of the judgment and decree in the matter indicated therein should have been filed in the latter Court only, and, in taking that view he relied upon Ramanna v. Sreeramulu,air 1957 AP. 768. in which it is said thus : " There is no difference in essence between a, judgment dismissing an appeal u|or-41, R. 11 CPC or that made u|or. 41, R. 17 CPC. In both the cases, the judgment of the appellate Court adjudicates upon the rights of the parties though in one case the manner of disposal is concise and speedy and in the other it takes a, more, elaborate form and longer time. Whether the, appeal is dismissed in limine against the exparte, respondent or dismissed after hearing the respondent, it is the decree, of the appellate Court that governs the rights of the parties. As the appellate decree is the final decree and the, decree of the lower court merges with it, it follows that the application for amendment qf the. decree should be made, to the appellate, Court. " in this revision petition, it is the legality and the correctness of the said view taken by the, learned Civil Judge, that are assailed.

( 5 ) IT was contended by Sri D. Puttaswamy learned Counsel

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