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High Court Of Rajasthan
Judgename : K.L.Bapna
CHAUTHILAL - Appellant
Versus
BADRI PRASAD - Respondent
Civil Misc. (Exn.) First Appeal 5 Of 1955
Decided On : 11/03/1959
EXECUTION OF DECREE - MERGER OF DECREE - EFFECT - APPEAL - DISMISSAL - EXECUTION PROCEEDINGS - CONTINUATION - AMENDMENT OF EXECUTION APPLICATION - C. P. C., ORDER XLI, RULE 5; ORDER XXI, RULE 11(2)(D).
Fact of the Case:
The respondent firm instituted a suit against the appellant and his son for the recovery of a certain amount. During the pendency of the suit, the plaintiff informed the Court that he had received a part of the amount from the defendants. The trial Court gave a decree for the remaining amount with interest and costs. The decree-holders filed an application for execution of the decree. In the meanwhile, the defendants filed an appeal, and the Chief Court of Karauli modified the decree by reversing the decree against the son and confirming the liability of the appellant to pay a lesser amount with interest at a reduced rate. The decree-holder applied for the arrest of the appellant, which was granted. The appellant filed an objection to the attachment of property, which was dismissed. The appeal by the son was dismissed by the High Court of Rajasthan. The appellant filed an objection that the decree put in execution merged in the decree of the appellate Court and the application could not proceed.
Finding of the Court:
The court held that the decree of the trial court does not get merged in the decree of the appellate court in such a way as to wipe out the proceedings taken for execution of the decree passed by the trial Court. The execution proceedings can continue after the appeal is decided, and the rights of the parties are to be determined in accordance with the decision of the appellate Court. The decree-holder or the judgment-debtor can inform the court about the result of the appeal, and the execution application can be amended accordingly.
Issues: Whether the decree of the trial court merges in the decree of the appellate court in such a way as to wipe out the proceedings taken for execution of the decree passed by the trial Court.
Ratio Decidendi: The court relied on Order XLI, Rule 5 and Order XXI, Rule 11(2)(d) of the Code of Civil Procedure to hold that an appeal does not operate as a stay of proceedings under a decree or order appealed from, and execution of a decree is not stayed by reason only of an appeal having been preferred. The court also referred to several decisions of Indian High Courts to support its view that the execution proceedings can continue after the appeal is decided, and the rights of the parties are to be determined in accordance with the decision of the appellate Court.
Final Decision: The court dismissed the appeal and directed the lower court to make a note on the execution application that an appeal was filed, and also note down the reliefs to which the decree-holder became entitled under the decree of the appellate court.
K. L. BAPNA, J.
( 1 ) THIS is a first appeal in execution proceedings.
( 2 ) THE respondent firm Badri Prasad Kishori Lal instituted a suit against Chauthi Lal and his son Ramcharan as owners of the firm Chauthi Lal Par-shadilal. The suit was for the recovery of Rs. 7,690/- principal and Rs. 86/8/-as interest, making the total claim at Rs. 7776/8/ -. During the pendency of the suit, the plaintiff informed the Court that he had received Rs. 600/- from the defendants. The trial Court gave a decree for Rs. 7. 178/8/-with full costs and interest to run at 3 per cent p. a, during the pendency of the suit and till satisfaction. According to the decree the amount decreed and the costs came to Rs. 8,075/7/9. The decree-holders filed an application for execution of the decree on 25-2-1947, and wanted execution against Chauthi Lal for Rs. 8,433/1/3 as follows: Amount according to decree Rs. 8,075 7 9 Cost of copies 5 2 6 Present 116153 expenses Interest during 235 79 suit Total. . . . 8,433 1 3 In column No. 4 it was mentioned that there had been no appeal. The defendant in the meanwhile filed an appeal, and the Chief Court of Karauli modified the decree by judgment of 10-5-1947.
( 3 ) THE decree against Rani Charan was reversed, and the suit against him was dismissed. The liability of Chauthi Lal to pay Rs. 7,176/8/- was confirmed, but the interest during the pendency or the suit and subsequently was to run on Rs. 7090/-aiid not the decretal amount of Rs. 7176/8/ -. The rate of interest awarded was confirmed. Ram. Charan was awarded the costs of the first Court against the plaintiff. The costs of the appeal were made-easy.
( 4 ) IT appears from a perusal of the record that on the same day, that is, 10-51947, the decree-holder applied to the executing Court that Chauthi Lal was about to run away in order to defeat and delay the execution of the decree, and Ram Charan was bent upon filing objections to the execution against the property. It was prayed that Chauthi Lal be arrested and detained in prison in execution of the decree. Chauthi Lal was arrested and detained in prison. Ram Charan Lal, as was expected, filed an objection to the attachment of property on 20-5-47, and that objection was dismissed. The appeal by Ram Charan was dismissed on 29-7-1954, by the High Court of Rajasthan. On 19-8-1954, the judgment-debtor filed an objection that the decree put in execution on 25-2-1947, was a decree passed by the District Judge of Karauli, and that the application could not proceed as the said decree merged in the decree of the appellate Court. The learned Senior Civil Judge dismissed the objection on 30-4-1955, and the present appeal is directed against that order. It may be mentioned that in the meanwhile the house property of the judgment-debtor was attached and sold, but the same had subsequently been set aside.
( 5 ) LEARNED counsel relied on Harilal Dalsukh-ram v. Mulchand Asharam, AIR 1930 Bom 225 in support of his contention that the decree of the Court of District Judge was not executed, and the application should be thrown out. As I read the judgment, Justice Murphy has only held it to be a technical error, which can be corrected by reference to S. 99 ot the Code of Civil Procedure. The authorities, which lay down that the decree of the trial court gets merged in the decree of the appellate court are no doubt correct, but the said decisions only emphasise this fact when dealing with the question of limitation as to when the period of limitation will commence for execution of the decree, or when the point in dispute is as to what court cart amend the decree. Order XLI, Rule 5, C. P. C. , says that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of su
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