The decree of the last court is the only decree that is executable, and any defect in the execution petition that does not render it illegal can be cured by amendment.

D.K. Seth, J.

A preliminary objection has been raised by Mr. Deb with regard to the maintainability of the execution petition on the ground that it is the trial court's decree which has since been sought to be executed, though the same has merged in the decree passed in the appeal by a Division Bench of this Court. According to him it is the last court's decree that is executable. He had relied on a passage from Mullah, 13th edition, page 191, following section 36 and had pointed out that it is only the last court's decree that alone is executable. He had also relied on the decision cited therein as well as a decision in the case of Dayaram Kashiram vs. Bansilal Raghunath, reported in AIR 1953 Bombay at page 214, where a similar view has been taken.

2. Pointing out from the Tabular Statement he submits that the date of the appeal court's decree has not been mentioned in Column 3 of the Tabular Statement but it is the date of the trial court's decree which has been mentioned in column 3 and, therefore, it is only the trial court's decree that has been sought to be executed. He further points out that it is also apparent from the papers annexed with the Tabular Statement which is the certified copy of the trial court's decree. Thus, it appears that it is the trial court's decree which has since been sought to be executed.

3. The learned Counsel for the decree holder on the other hand points out that in column 3 the date of decree of the trial court is to be mentioned and that in column 4 the date of the decree of the appeal court having been mentioned the same satisfies the test that it is the decree of the last court that was sought to be executed. According to him, since column 4 follows column 3, the particulars of the appeals and the other questions cannot be disclosed in column 3. Therefore, the preliminary objection cannot be sustained. Alternatively, he submits that if the court holds that there is any technical defect in that event he may be permitted to remove the defect and leave may be given to do so.

4. I have heard both the Counsel at length.

5. There is no doubt about the proposition as contended by Mr. Deb that it is the last court's decree that alone is executable. The passage from Mullah clearly supports the same. The decision cited by him as mentioned hereinbefore also supports the view. The principle of law is clear and settled and there cannot be any two opinion. Until an appeal is decided it is the decree of the court of first instance that can be executed. Once the appeal is decided it is the appeal court's decree which can only be executed. Inasmuch as the decree appealed against merges in the appeal court's decree. (Collector of Customs vs. East India Commercial Co. Ltd., AIR 1963 SC 1124). However, there are divergence of opinion in cases where the appeal is summarily dismissed without issuing notice. We are not concerned with such a situation now. But when the appeal is heard, Order 41 Rule 32 requires that the judgment should very reverse or confirm the decree from which the appeal is preferred. Thus it is the decree of the appeal court which alone is executable.

6. With regard to the principle that when the Appellate Court makes a decree, the decree of the original court is merged in that of the Superior Court, and it is the later decree alone that can be executed may be supported by the following decisions :

Jowod Hossain vs. Gendan Singh, 1926 53 LA. 197 : AIR 1926 P.C. 93; Accram Hossain vs. Mst. Umatul, AIR 1931 Patna 27; Hasim vs. Martin, AIR 1927 Rangoon 104; Dayaram vs. Banshilal, AIR 1953 Bombay 214; Kailash Chandra vs. Girija, (1912) 39 Cal. 925; Lujman vs. Kishun, (1882) 8 Cal. 218; Mohammad us. Mohammad, (1889) 11 Allahabad 267 (F.B.); Veerappa vs. Siuajmi, AIR 1942 Madras 291. But where no decree is drawn in respect of the order passed by the Appeal Court viz. : in cases of dismissal for default or want of prosecution or on account of abatement or withdrawal, the decree of the original cou