A decree comes into existence upon the pronouncement of judgment, and an execution case can be filed for the execution of such decree even before the preparation of a formal decree.

N.L.Untwalia, J.

1. In this miscellaneous second appeal a question of law falls to be decided which, in my opinion, has been directly decided by a Bench of this Court in Jagdeo V/s. Basudeo Narain Singh, 1953 BLJR 17 : (AIR 1954 Pat 92). But, since some points of distinction were endeavoured to be made out by the learned advocate for the appellants, as also a vehement argument was advanced in order to persuade me to doubt the correctness of that authority and to refer this case to a larger Bench for its re-consideration, I think it is necessary for me to state a few facts and to give some reasons of mine too in support of the decision of the question of law involved in this appeal.

2. Respondents 1 and 2 filed a title suit against the appellants and respondents 3 and 4, for declaration of title and recovery of possession in respect of the suit land. The suit was dismissed by the trial court. The plaintiff-respondents filed First Appeal No. 354 of 1953 in this Court. It was heard by a learned Single Judge and was allowed on the 15th May, 1959. The plaintiffs suit was decreed. Shortly after the judgment was pronounced but before a formal decree was prepared, as required by Sec.33, Code of Civil Procedure (hereinafter referred to as the Code), Execution Case No. 12 of 1959 was filed in the court below for execution of the decree, which was passed or was to be formally drawn up in First Appeal No. 354 of 1953. The execution case was filed on the 1st July, 1959. Order No. 2, dated 3-7-59 reads thus :

"Seen office report. The execution petition, is in order and within time. D. Hr. to take step for issue of notice Under Order 21, Rule 22 C P. C. by 10-7-59. He is further directed to file c. c. of decree of the Hon ble High Court, Patna".

Two directions were given by the above order, in compliance with the direction to file the certified copy of the decree of this court, it appears that the decree-holders filed the certified copy of the judgment on 1-7-59 and did not file the certified copy of the decree as the decree had not been formally drawn up and prepared till then. They, however, did not comply with the direction of the execution court to take steps for issue of notice under Order 21, Rule 22 of the Code. Order No. 3, dated 10-7-59 reads thus :

"D. Hr. files c. c. of judgment. D. Hr must comply with the above order by 22-7-59 when put up for further orders".

The next order shows that the decree-holder filed processes etc. along with form of notice under Order 21, Rule 22 of the Code, and notices were issued and are said to have been served on the judgment-debtors. Order No. 5, dated 22-7-59 shows that the decree-holders, due to certain reasons, prayed to the execution court to expunge the name of respondent No. 4, namely, the State of Bihar, from the category of judgment-debtors and proceed with the execution case as against the other judgment-debtors. On 23-7-59 the decree-holders proved service of notice and filed affidavits etc. and. prayed for issue of delivery of possession. The prayer was allowed, the writ of delivery of possession was issued and shortly thereafter delivery of possession was effected on the suit land on the 8th August, 1959, the appellants filed an objection under Sections 47 and 151 of the Code challenging the execution proceeding as fraudulent and taken out after suppressing notices and other processes. The only ground of attack on the maintainability of the case, however, seems to be that the executing court could not execute the decree, that is to say, the judgment only, unless and until a formal decree was prepared in accordance with/the provisions of Sec.33 and Order 20, Rule 6 of the Code. This technical point was pressed by the appellants in the courts below, but it was overruled. Hence this miscellaneous second appeal by them.

In view of a recent Full Bench decision of this Court in Baijnath prasad V/s. Ramphal Sahni, 1962 B. L. J. R. 110 : (AIR 1962 Pat 72) in the first instance, it appe