Honble SHARMA, J.–Instant revision impugns the order dated May 18, 1996 of the learned Civil Judge (Junior Division) Rajsamand, whereby the application of the judgment debtor petitioner (for short the judgment debtor) under section 47 read with order 21 Rule 34 and section 151 CPC was dismissed.

(2). Brief resume of the facts is that one Radhu Lal, the father of the judgment debtor was the defendant in a suit for specific performance instituted by one Laxmi Lal in the court of Munsif Rajsamand. The suit was ended in dismissal. Laxmi Lal preferred regular first appeal against the decree of the trial court. Appellate Court (Additional Civil Judge Udaipur Camp Rajsamand) allowed the appeal vide its decree dated April 18,1978. Thereafter Radhu Lal instituted second appeal in the High Court assailing the decree of the appellate court. During the pendency of the appeal Laxmi Lal died and his legal representatives (present non-petitioners Smt. Amba Bai and other) were brought on record. High Court however, dismissed the appeal on merits on May 23 ,1991.

(3). In execution case no. 3/93, the judgment debtor Gopal, moved an appli- cation under Section 47 read with order 21 Rule 34 and Section 151 CPC to the effect that his father Radhu Lal died on December 14, 1990 and High Court passed and decree of dismissal of appeal on May 23,1991, obviously against a dead person which is a nullity and cannot be executed. Another objection was also raised that the decree was inexecutable by the legal representatives of Laxmi Lal, without ob- taining the succession certificate. The executing court dismissed the application vide impugned order.

(4). Mr. S.S.Vyas, learned counsel appearing for the judgment debtor vehemently contended that the decree of the appellate court merges in the decree of the High Court which was a nullity being passed against a dead person, therefore the decree of the appellate court has become inexecutable. It was also argued that decree cannot be executed by the legal representatives of late Laxmi Lal without obtaining the succession certificate. Reliance was placed on M/s. Gojer Brothers vs. Ratan Lal (1) and Jivi Ben Lavji vs. Jadavji Dev Shankar (2).

(5). Mr. S.P.Arora, learned counsel for the non-petitioner supported the impugned order and placed reliance on Rahissa Khatoon vs. Samser Ali (3) and Bhagesh Chandra vs. Laxman Das (deceased) (4).

(6). I have given my anxious consideration to the rival submissions and care- fully gone through the impugned order.

(7). Gojer Brothers vs. Ratan Lal (supra) was the case where their Lordships of the Supreme Court observed thus-

"where the decree of the trial court is carried in appeal and the appellate court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the trial court. The reason for this rule is that in such cases the decree of the trial court is merged in the decree of the appellate court."

(8). In the case on hand, the suit instituted by Laxmi Lal was dismissed by the trial court. That decree was taken in first appeal where it was set aside and suit was decreed and then in second appeal the High Court, after a contested hearing dismissed the second appeal and confirmed the decree of the first appellate court. Therefore as per ratio propounded by the Supreme Court in Gojer Brothers vs. Ratan Lal (supra) the decree of the first appellate court must be taken to have merged in the decree of High Court and it is the decree of the High Court which is the only decree executable.

(9). Ratio of Rahima Khatun vs. Samser Ali (supra) is not applicable in the facts of the case on hand. In Rahima Khatuns case the revision petition was filed by one Samser Ali before the Gauhati High Court. He was the sole defendant petitioner. He had died on Sept. 2, 1982, but the High Court was not informed the death of Samser Ali and the High Court after a contested hearing dismissed the revision on Sept. 3,1982. The revision filed by Sams

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