NAVANEETHAMMA v. ADAMMA — 1993 DIGILAW 144 (KAR)

A. J. SADASHIVA, J. ( 1 ) THOUGH the matter is listed for orders, by consent of both the counsel, the matter is taken up for final hearing. 1. The petitioners in this revision petition are the legal represents tives of the judgment-debtor in execution application No. 134 of 1991 on the file of the learned munsiff, k. g. f. they have assailed the order dated 24-4-1993 passed by the learned munsiff, k. g. f. in execution case No. 134/91 overruling their objections and ordering issue of delivery warrant in respect of the execution schedule property. ( 2 ) THAT, for the sake of convenience, the parties hereto arc referred to with reference to their position in the execution application. The petitioners are the judgment-debtors and the respondent is the decree-holder, ( 3 ) THE question in controversy in this petition is" whether a decree-holder, whose application in execution of his decree has been pending, during the pendency of the civil revision petition on account of stay of decree by this court in revision, can continue execution proceedings on that application, after the dismissal of the judgment-debtor's revision?"in order to resolve the aforesaid controversy, it is necessary to state a few facts of this case, which are as follows: that the decree-holder is the landlord and the judgment-debtors are the legal representatives of the tenant. The decree-holder had filed an eviction petition in h. r. c No. 41/78, on the file of the learned munsiff, k. g. f. against the tenant one devaraj, the husband of the first judgment-debtor under Section 21 (l) (a) and (h) of the Karnataka Rent Control Act, 1961, (for short 'the act' ). The said petition came to be allowed under Section 21 (lxa) of the act only. The prayer under Section 21 (l) (h) of the act was refused. Being aggrieved by the said Order, both the landlord and the tenant have filed separate revisions before the learned district judge, kolar, who after hearing the parties confirmed the order passed by the learned munsiff. The tenant being aggrieved by the said order filed a revision petition in c. r. p. No. 3117/92. The decree-holder also preferred a revision petition in c. r. p. No. 391/92. By order dated 27-1-1992, both the revision petitions were dismissed by this court, affirming the orders of the court below. The tenant being aggrieved by the said order filed a revision petition in c. r. p. No. 3117/92. The decree-holder also preferred a revision petition in c. r. p. No. 391/92. By order dated 27-1-1992, both the revision petitions were dismissed by this court, affirming the orders of the court below. However this court granted time to the tenant, till the end of October 1992, to vacate and deliver vacant possession of the premises to the decree-holder. While dismissing c. r. p. No. 391/92, it appears this court, passed an order confirming the order of the learned district judge dismissing the petition under Section 21 (l) (a) and (h) of the act. This order came to be modified on the application filed by the decree-holder. The said order reads as follows:"c. R. P. No. 391 of 1992 was by the landlord against the refusal to make a decree for eviction under Section 21 (l) (h) only. Hence reference to Section 21 (l) (a) was uncalled for and was a mistake. The sentence 'no ground is made out under Section 21 (l) (a) also' has to be deleted from my earlier order. Same shall be deleted. It is so ordered. "it is admitted by the parties that the learned district judge, kolar, while dismissing revision petitions, did not allow any time to the tenant for vacating the premises. The decree-holder immediately after obtaining the certified copy of the Order, filed an application for execution of the decree in ex. no. 134/91 on the file of the learned munsiff, k. g. f. after registration of execution, it appears the tenant filed a revision in c. r. p. No. 3117/92 before this court and obtained an order of stay of the order of eviction passed by the courts below and an account of order of stay, the execution application was also not proceeded with. That after the disposal of revision petitions, by this court, it appears the tenant died and the judgment-debtors were brought on record, in execution case No. 134/91 and after the expiry of the time granted by this court, execution case No. 134/91 was taken up for consideration. That, in the execution case No. 134/91, the judgment-debtors have raised objections as to the executability of the decree on the ground that the decree is unsustainable in law, as the same was made on improper evidence. That, in the execution case No. 134/91, the judgment-debtors have raised objections as to the executability of the decree on the ground that the decree is unsustainable in law, as the same was made on improper evidence. The first judgment-debtor has filed an application, i. a. No. 15, for summoning one gopalakrishna. The purport of the said application appears to be, to show that the eviction order passed under Section 21 (lxa) of the act is invalid, for the reason that the rents were being collected by the said gopalakrishna, for and on behalf of the landlord. The said applica tion came to be rejected by the executing court for the executing court cannot go into the merits of the case and adjourned the case to 24-4-1993 for further hearing on merits of the execution application. That, on 24-4-1993, Advocate appearing for judgment-debtors 1 to 3 filed a memo for permission to retire. His memo was rejected so far as third judgment-debtor is concerned, though he was permitted to retire for judgment-debtors 1 and 2. Judgment-debtors 1 and 2, who were present before the court requested for time to engage another counsel. The learned munsiff after having perused the order of this court in c. r. p. No. 3117/91 rejected the prayer and passed an order directing issue of delivery warrant. The judgment-debtors having been aggrieved by the said order have filed this revision petition, ( 4 ) SRI rama murthy, learned counsel appearing for the petitioners, submits that the order under revision is unsustainable in law on three counts, namely (a) there was no executable decree of the trial court sought to be executed as the same is merged with the decree of this court, made subsequent to the date of the application; (b) that the application for execution of the decree ought to have been dismissed as premature as the application was filed by the decree-holder even before the expiry of the time granted by this court in c. r. p. No. 3117/92 and (c) that the application for execution of the decree is also liable to be dismissed as the same is not in conformity with the Provisions of order 21, Rule 11 (3) of the Code of Civil Procedure. ( 5 ) SRI rama murthy in support of his contentions, has referred to me the following authorities, namely: (i) 1984 (2) a. f. weekly reports 133; (ii) AIR 1961 Supreme Court 1124; (iii) AIR 1974 Supreme Court 1380. He has also drew my attention to the judgment of the High Court of Kerala reported in AIR 1964 Kerala 163 in support of his another contention that the application is not maintainable as the legal representatives are not parties to the original decree. ( 6 ) PER contra, Sri g. s. visveshwara, learned counsel appearing for thedecree-holder, submits that the execution application filed by the decree-holder was pending on the file of the executing court on account of the order of stay issued by this court staying the operation of the decree and it was resumed after the disposal of the revision petition and after the expiry of the time granted by this court, and therefore, there is no bar for the court to continue execution proceedings on that application. In support of his contention he referred me to the following decisions: (i) AIR 1942 oudh 84; (ii) AIR 1940 all. 496; (iii) AIR 1955 Cal 14 ; and (iv)air1959 cal. 73. That, in none of the decisions referred to by Sri rama murthy, the question in controversy in this petition came up for consideration. I find the question in controversy in those cases are entirely different. ( 7 ) IN the case of tadikonda parvathamma v all baig, 1984 (1) a. p. weekly reports 133, the question that came up for consideration was the computation of period of limitation for executing the decree made under the Provisions of the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960. The facts in that case were, that the landlord obtained a decree for eviction from the rent controller on 14-6-1976. The appeal preferred by the tenant was dismissed on 30-9-1991 and the civil revision petition filed under Section 22 of the said act was also dismissed on 20-7-1982. While affirming the order of eviction, the high court granted three months' time to the tenant to vacate the premises. As the tenant did not vacate, the landlord took out execution proceedings. He filed e. p. 1/83 on 25-1-1983. While affirming the order of eviction, the high court granted three months' time to the tenant to vacate the premises. As the tenant did not vacate, the landlord took out execution proceedings. He filed e. p. 1/83 on 25-1-1983. The tenant raised an objection that the execution petition is barred by limitation as the same was filed after the expiry of 6 months from the date of order. Under these circumstances, while considering the period of 6 months from the date of the order in computing the period, the Andhra Pradesh high court has held as follows:"15. It is unnecessary to multiply decisions on this point. It is settled law that every provision of statute must be given a reasonable interpretation where a literal consideration would lend anomalies. It is therefore not possible to accept the contention of Mr. S. Satyanarayana prasad that six months from the date on which the order is made nothing more or nothing less. If such an interpretation is given, it would lead to very anomalous position. As for example in this case, if an application is filed by the landlord within the time given to the tenant for vacating the premises it would be a futile application. It can under circumstances be considered on merits as there is still lime for the tenant to vacate the premises. The law does not recognise such futile applications being made or applications which are just to be made either to be returned or to be kept in cold storage till the time given by the court expires. Rule 23 evidently contemplates an order capable of execution. If the order was not capable of immediate execution time would run for the purpose of execution only when the decree become capable of execution. " ( 8 ) SRI B. V. Rama Murthy, learned counsel placed emphasis on this decision and submits that the application for execution of the decree is filed by the decree-holder even prior to the expiry of the time granted by this court and, therefore, the application is premature and liable to be dismissed. This submission of Sri rama murthy cannot be accepted for, the execution application was filed even prior to the filing of the revision petition before this court and it was resumed after the expiration of the time granted by this court. This submission of Sri rama murthy cannot be accepted for, the execution application was filed even prior to the filing of the revision petition before this court and it was resumed after the expiration of the time granted by this court. Under the facts and circumstances of this case, it cannot be said that, there was no executable decree on the date of execution application. The decision under reference also does not say that such an application shall be dismissed. It is important to note, the observation"the law does not recognise such futile applications being made or applications which are just to be made either to be returned or to be kept in cold storage till the time given by the court expires. "indicates that application may not be dismissed as premature. On the other hand it can be 'kept in cold storage till the time given by the court expires'. This is what has been done in this case. Hence the contention of Sri rama murthy that the application is premature and therefore liable to be rejected, fails. ( 9 ) THE next decision referred to me by Sri rama murthy is, the case of collector of customs, Calcutta v east India commercial co. Ltd. , AIR 1963 SC 1124 . In that case an order was made by the collector of customs, calcutta, confiscating 50 drums of mineral oil imported by east India commercial company by his order dated 20-9-1950 and imposing a personal penalty of Rs. 61,000/- on east India commercial company. The east India commercial company being aggrieved by the said order appealed to the central board of revenue under Section 188 of the Customs Act and the said appeal was dismissed in April 1952. Thereupon the east India commercial company filed a writ petition under article 226 of the Constitution in the High Court of calcutta. When the petition came up before the learned single judge, a question was raised as to the jurisdiction of the high court to entertain the petition in view of the decision of the Supreme Court in the case of election commission India v venkatasubba rao, AIR 1956 SC 210. The learned single judge considered the point important and referred the matter to a larger bench and eventually the question was considered by a full bench of the High Court of calcutta. The learned single judge considered the point important and referred the matter to a larger bench and eventually the question was considered by a full bench of the High Court of calcutta. The full bench addressed itself two questions, namely (i) whether any writ could be issued against the central board of revenue, which was a party to the writ petition and which was permanently located outside the jurisdiction of the high court, and (ii) whether if no writ could be issued against the central board of revenue, any writ could be issued against the appellant, which was the original authority to pass the order under challenge, when the appellate authority (namely, the central board of revenue) had merely dismissed the appeal? The full bench held on the first question that the high court had no jurisdiction to issue a writ against the central board of revenue. However, it was held that as the central board of revenue had merely dismissed the appeal against the order of collector of customs, calcutta, the real operation order was the order of the collector of customs which was located within the jurisdiction of the high court and therefore it had jurisdiction to issue a writ. This matter was challenged before the Supreme Court. The Supreme Court in order to resolve the aforesaid controversy has considered the doctrine of merger and has held as follows:" (4) the question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious tfatwhen an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that Order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the high court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the high court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question, therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority, is beyond the territorial jurisdiction of the high court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the high court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its Order, the high court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. In effect, by issuing a writ to the original authority setting aside its Order, the high court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of the original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the high court, it is the order of the latter authority which is the operative order after the appeal is disposed of and as the high court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal. " ( 10 ) THE question that came up for consideration before the Supreme Court in the case of M/s. Gojer brothers (p) ltd. V ratan lal singh, AIR 1974 SC 1380 was the applicability of Section 17 of the West Bengal Premises Tenancy Act (12) 1956, Section 17-d as introduced by the President's act 4/68 and re-enacted by West Bengal Amendment Act 34/69. The Supreme Court while considering the application of Section 17-d of the said act had an occasion to consider the doctrine of merger. In paras 15 and 18 of the said judgment, the Supreme Court pronounced as follows:"15. In cases 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. In paras 15 and 18 of the said judgment, the Supreme Court pronounced as follows:"15. In cases 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. In jowad hussain v gendan singh, AIR 1926 PC 98 the privy council while holding that the limitation of three years within which an application for a final decree mustbe made runs from the date of the decree of the appellate court, quoted with approval the statement of law contained in the judgment of a learned judge of the Allahabad High Court to the following effect: "when an appeal has been preferred, it is the decree of the appellate court which is the final decree in the cause". Per banerji, j. In gajadhar singh v kishan jiwan lal, ILR 39 all. 641 : AIR 1917 all. 163 (sb ). The privy council also adopted the statement contained in a judgment of tudball, j. , to this effect: "when the munsiff passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties. " thus, when the decree of the court of the first instance is confirmed by the high court and the latter decree is confirmed by the privy council the decree capable of execution is the decree of the privy council. Bhup indar v bijai, 27 ia 209 pc. In that case the decree passed by a district judge in 1887 awarded "future mesne profit" to the plaintiff. That decree was reversed by the high court but was confirmed by the privy council on may 11, 1895. When the matter came back in execution proceedings, the privy council held that the decree which the courts had to execute was the one passed by it in 1895 and since by that decree the district judge's decree was confirmed, the decree of 1895 clearly carried the mesne profits upto its own date. Xxx xxx xxx. 18. When the matter came back in execution proceedings, the privy council held that the decree which the courts had to execute was the one passed by it in 1895 and since by that decree the district judge's decree was confirmed, the decree of 1895 clearly carried the mesne profits upto its own date. Xxx xxx xxx. 18. The fundamental reason of the Rule that where there has been an appeal, the decree to be executed is the decree of the appellate court is that in such cases the decree of the trial court is merged in the decree of the appellate court. In course of time, this concept which was originally restricted to appellate decree on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like revisions and even to proceedings before quasi-judicial and executive authorities. " ( 11 ) ELABORATING his arguments Sri rama murthy submits that the decree of the trial court was put into execution came to be merged with the decree of this court and therefore it is the decree of this court which could be executed, and not the decree of the trial court. That on the date on which the execution application was filed, there was no decree by this court. Hence the execution shall not be allowed in respect of nonest decree or a decree which would come into being at a subsequent stage. ( 12 ) I am not able to be pursuaded by this submission, because the facts in the aforesaid cases are clearly distinguishable from the facts of this case. The question in controversy in this case, as already stated in the beginning of this Order, is whether an execution application in respect of a decree filed before filing of the revision petition and has been pending on account of the order of stay of the decree sought to be executed could be continued after the disposal of the revision petition. The Supreme Court in the aforesaid decision has not considered the question and that was also not the question of controversy in the said proceedings before the Supreme Court. Therefore the aforesaid decisions are not applicable to this case. The Supreme Court in the aforesaid decision has not considered the question and that was also not the question of controversy in the said proceedings before the Supreme Court. Therefore the aforesaid decisions are not applicable to this case. ( 13 ) IN the case of saroop narain v suraj mohan dayal, AIR 1942 oudh 84, a similar question came up for consideration and it is necessary to state a few facts of that case, which are as follows: on 25-9-1934, the respondent obtained a decree for possession and mesne profits from the court of the additional subordinate judge of bariely against the appellant. On 9-10-1934 he applied for the transfer of the decree under Section 39 of the Code of Civil Procedure to the civil judge of seethapur, where a major portion of the property was situated. The respondent applied for the execution of the decree in the latter court for the possession of the property decreed to him. On the 4th december, 1934 the appellant filed an application in the Allahabad High Court against the decree of the additional subordinate judge, bariely. The execution of the decree was stayed on 3-5-1935 by the high court on the condition of furnishing security. The appeal was dismissed by the high court on 22-12-1939, and the stay order dated 3-5-1935 was consequently discharged. On 10-1-1940, the respondent applied to resume the proceedings in the execution court at seethapur. The appellant filed objections under Section 47 of the c. p. c. , urging inter alia that the execution application was not maintainable as the decree of the trial court had merged in the decree of the high court among other objections. Dealing with the first contention their lordships after having considered the judgments reported in 11 all. 267 : AIR 26 PC 93 : AIR 1927 rangoon 104 had observed as follows:"it will appear therefore that neither of the above cases is strictly applicable to the present case. Dealing with the first contention their lordships after having considered the judgments reported in 11 all. 267 : AIR 26 PC 93 : AIR 1927 rangoon 104 had observed as follows:"it will appear therefore that neither of the above cases is strictly applicable to the present case. In the present case what happened was that an application for execution of the decree of the trial court was rightly made in the sithapur court, and it would have been executed in the ordinary course but for the fact that the execution was stayed by the allahabad high court under order 41, Rule 5, c. P. c. this Rule lays down 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 such decree. It is clear therefore that the filing of an appeal does not automatically operate as a stay of proceedings, and it is not until the appellate court, for sufficient cause, orders a stay of execution of the decree that the execution can be stayed. As the appeal was dismissed with costs by the Allahabad High Court the stay order was discharged. The correct position therefore, in our opinion, is that the interruption caused by the stay order was removed, the parties were relegated to their old position and the execution application, which was pending must now proceed as if there had been no appeal. The effect of the order of the appellate high court was that the trial court's decree was affirmed in all respects, and although technically speaking it is true that the decree of the trial court merged in the decree of the high court it does not necessarily follow that the trial court's decree, after having been put into operation, ceased to be executable on the passing of the appellate decree. It may be recalled that the merger, which took place in the cases cited on behalf of the appellants, was a merger for purposes of amendment and limitation, and we do not think that in a case where the appellate decree merely affirms the decree of the trial court, and does not affect the terms of that decree in any way whatsoever, the fiction of merger should be carried so far as to lead to such a palpably absurd and inequitable result that the decree-holder should be put to the inconvenience of filing a fresh application in the court which originally passed the decree, getting a fresh transfer certificates to another court and pursuing the proceedings for execution in that court. We are not prepared to hold that even where a decree of the trial court has been affirmed by the appellate court its result is to wipe out the decree of the trial court for all purposes. In a case reported in 4 oc 333, which is a comparatively less strong case on the facts it was held that ' it is the appellate decree alone which can be executed even where it merely affirms the decree of the lower court. But in such a case the alteration of the application for execution by substitution of the appellate decree for the first decree is a technical and formal amendment only, and the ommission of the decree-holder to do so in his second and subsequent applications, though a defect is not a material defect invalidating the application, and the court executing the decree can order the amendment to be made. It was also held that "a fresh transfer certificate after the appellate decree was not necessary. " in AIR 1921 lb 37 it was held after referring to various authorities that 'in general, the Rule must be that the appellate court's decree, if properly drawn, is the sole decree to be executed in the case, but there may be cases in which that general and ordinary Rule cannot and should not be invariably enforced, and in particular circumstances it may be incumbent upon the courts to permit execution of the decree of the original court. ' in that case also, the appellate court had affirmed the decree of the trial court and had awarded costs. ' in that case also, the appellate court had affirmed the decree of the trial court and had awarded costs. It was observed that the decree-holder might have applied for the amendment of the decree, so as to execute the decree of the appellate court, but he was not bound to do so. In AIR 1931 pat. 27, the facts were that the decree-holders were trying to execute the decree of the trial court, which had been affirmed by the appellate court. The decree-holders had not expressly asked the court to execute the decree of the appellate court, but they had mentioned that an appeal was preferred on behalf of the judgment-debtors in the high court and was decided in favour of the decree-holders. It was held that 'what the decree-holders were trying to execute was the mandatory part of the decree of the first court as affirmed by the court of appeal, and it would be the merest technicality to say under these circumstances that the decree-holders were asking for the execution of the decree of the first court as something distinct from the decree of the appellate court. In the present case it appears that at the time when the application for execution was made the appeal had not been preferred, and the decree-holder had rightly noted in col. 4 of the form for execution of decree that no appeal had been preferred. On 10th january, 1940, however, the decree-holder filed an application in which he stated that the trial court's decree, which had been appealed against to the Allahabad High Court, had been confirmed by the court on 22nd december, 1939. It was further stated that as the execution of the decree had been postponed by the court, it may now be resumed and possession may be granted to the decree-holder. In his reply, dated 19th january, 1940, to the objections, the respondent stated that the decree under execution be deemed to be the decree of the appellate court and the execution application be deemed to have been amended. In AIR 1930 bom. In his reply, dated 19th january, 1940, to the objections, the respondent stated that the decree under execution be deemed to be the decree of the appellate court and the execution application be deemed to have been amended. In AIR 1930 bom. 225 it was held that: 'where during the pendency of execution proceedings of the original court an appeal is preferred by the other party, and the execution proceedings are kept pending and later on an appellate decree is passed, an application simply for revival of the execution proceedings by the party executing the decree, though bad in form, is merely an error of procedure which is curable under Section 99 of the code. ' we hold, therefore, that the contention as regards the maintainability of the application for execution has no force. " following the aforesaid decisions, the Allahabad High Court in the case of poteshwari prasad singh v abdul karim and others, AIR 1946 all. 496 has observed as follows: " (2) we have considered decisions of the allahabad, oudh and Patna courts bearing on the question and we have come without hesitation to the conclusion that the order of the first appellate court cannot be upheld. It was held by a bench of this court in 7 all. 366 that where an appellate decree affirms and adopts the mandatory part of the first court's decree, that decree may be and should be referred to, and the mandatory part of it should be executed as though it were the decree of the appellate court . All objections taken in this case that the decree-holder did not expressly ask the court to execute the decree of last instance was a mere technical objection and there was no reason why the execution asked for should not be allowed. In the oudh case in AIR 1942 oudh 84 it was held by a bench that no fresh formal application is necessary; the decree-holder can apply to the execution court to resume the proceedings. The Patna high court in 9 pat. 829 agreed with the view taken by this court in the case cited and also in 4 all. In the oudh case in AIR 1942 oudh 84 it was held by a bench that no fresh formal application is necessary; the decree-holder can apply to the execution court to resume the proceedings. The Patna high court in 9 pat. 829 agreed with the view taken by this court in the case cited and also in 4 all. 376 that where a court of appeal affirms, reverses, or modifies the decree of the first court, the degree of the appellate court is the only decree capable of execution, but at the same time held that an objection that the decree-holder had sought to execute the decree of the trial court was a mere technical objection which should not be allowed to prevail. "a similar question had also come up for consideration before the High Court of calcutta, in the case of Smt. Ratanmala mundal v copal lal daga, AIR 1955 Calcutta 14. After considering the rival contentions urged by the parties, their lordships have pronounced as follows:" (8) the second point urged by the chakrabarty is that after the dismissal of the f. a. No. 152 of 1945 (cal.), the decree of the trial court which has been put to execution is merged in the decree of the appeal court and the only decree that is executable is the decree of the appeal court. There are authorities in support of the propositions that after the decree of the trial court is merged in the decree of the appeal court and the only executable decree is the decree of the appeal court (see jawad hussain v gendar singh, AIR 1926 PC 36 (c): gajendra singh v kishan jiwan lal, AIR 1917 all. 163 sb (d); syam mandal v satinath banerjee, alr 1917 Cal 728 (e) and the cases referred to in the notes under Section 36 of the Code of Civil Procedure by sir dinshaw mulla ). An examination of the authorities, however, shows that the court has applied the theory of merger in two classes of cases only, viz. , for the purpose of determining the point of time when limitation would run and for the purpose of amending the decree. An examination of the authorities, however, shows that the court has applied the theory of merger in two classes of cases only, viz. , for the purpose of determining the point of time when limitation would run and for the purpose of amending the decree. It has been held that limitation would run from the date as provided in the decree of the appeal court and not that of the trial court and appeal court alone is competent to amend the decree even if the appeal court decree is a decree of dismissal of the appeal and confirmation of the decree of the trial court. The court has never applied the doctrine of merger for the purpose of defeating an execution petition of the decree of the trial court when the appeal has been dismissed and the decree of the trial court confirmed. Although it is true that technically the decree of the trial court merges in the decree of the appeal court, it cannot be said that even when the decree of the trial court is affirmed in appeal, the decree of the trial court is wiped out for all purposes. To apply the doctrine of merger in such cases would lead to palpably absurd and inequitable result. The decree-holder would be put to the inconvenience of filing a fresh petition for execution of the decree of the appeal court which is nothing but the same decree of the trial court and pursue the execution proceedings 'de novo'. There could conceivably be no point in such senseless multiplicity of proceedings. Filing of the appeal does not operate as a stay of execution of the decree. On what principle can it be said that the dismissal of the appeal will operate as a dismissal of the pending execution case of the decree of the trial court, when the appeal court does nothing but dismiss the appeal and confirm the decree of the trial court? I can find none. No direct authority of the high court on the point has been referred to us. But there are authorities of the other courts in support of the proposition that the fiction of merger should not be carried too far in cases like the present because it would lead to obvious injustice [see ekram hussain v mt. Umatul rasul, AIR 1931 pat. But there are authorities of the other courts in support of the proposition that the fiction of merger should not be carried too far in cases like the present because it would lead to obvious injustice [see ekram hussain v mt. Umatul rasul, AIR 1931 pat. 27 (f), saroop narain v suraj mohan, AIR 1942 oudh 84 (g), pateshwari prasad singh v abdul karim, AIR 1946 all. 496 (h)]. Of these authorities the facts in the oudh case are on all fours with the facts in this case during the pendency of the execution of the decree of the trial court an appeal was filed by the judgment-debtor and the execution of the decree was stayed. After the dismissal of the appeal the stay order was vacated. Thereupon the decree-holder applied to the executing court to resume the execution proceedings. The judgment-debtor objected that the decree of the trial court was no longer executable and the only decree executable was the decree of the appeal court even though the decree of the appeal court was a decree affirming the decree of the trial court. The court consisting of ghulam hasan and agarwal jj. Overruled the objection and allowed the decree-holder to resume the execution proceedings of the decree of the trial court still pending. At page 86 their lordships observed: "we do not think that in a case where the appellate decree merely affirms the decree of the trial court, and does not affect the terms of that decree in any way whatsoever, the fiction of merger should be carried so far as to lead to such palpably absurd and inequitable result that the decree-holder should be put to the inconvenience of filing a fresh application in the court which originally passed the decree getting a fresh transfer certificate to another court and pursuing the proceedings for execution in that court. We are not prepared to hold that even where a decree of the trial court has been affirmed by the appellate court its result is to wipe out the decree of the trial court for all purposes. "with this observation we respectfully agree as also with the reasonings given by fazl ali, j. In AIR 1931 pat. We are not prepared to hold that even where a decree of the trial court has been affirmed by the appellate court its result is to wipe out the decree of the trial court for all purposes. "with this observation we respectfully agree as also with the reasonings given by fazl ali, j. In AIR 1931 pat. 27 (f) even if the revival of the pending execution procceding after the dismissal of the appeal is considered to be bad it is only had in form and is merely an error of procedure which is curable under Section 99, c. p. c. (see h ari lai dalsukhram v mulchand, AIR 1930 bom. 225 (i ). We overrule the second point urged by Mr. Chakraborty in support of the appeal. " a similar question came up again for considering before the Calcutta high court in the case of aburamlaland another v devadaslala, AIR 1959 Calcutta 7. While considering the effect of execution, application already startedin respect of an appeal decree superseding the original decree, the Calcutta high court has observed as follows: "5. Mention should be made of one argument advanced by the learned Advocate for the respondent that the execution proceedings became dead on the passing of a decree by the court in appeal from the final decree. While it is settled law that the decree of the appellate court supersedes the original decree passed by the trial court, it does not, in my opinion, necessarily follow that the execution proceedings already instituted became dead. It is reasonable, in my judgment, to consider that on and from the passing of a decree by the court of appeal, the application which was originally for execution of the trial court's decree, became an application for the execution of the appellate court's decree. Where the appeal is dismissed, there is obviously no difficulty to the procedure. Where in an appeal the decree is modified in such a manner that the proceedings can still go on it will be for the court concerned to decide whether it will allow necessary amendment of the application for execution in order that it may become properly an application for execution of the appellate court's decree. Where the lower court's decree has been reversed, the execution proceedings cannot obviously go on. Where the lower court's decree has been reversed, the execution proceedings cannot obviously go on. " ( 14 ) IN the light of the aforesaid decisions, i proceed to consider the rival contentions of the parties in this case. It is contended by Sri rama murthy that the decree-holder has filed an application for execution of the decree in the year 1991 and that decree came to bemerged with the decreeof this court passed on 27-1-1992 and it is the decree of this court that is to be executed and not the decree of the trial court and hence the application for execution of the decree of the trial court is not maintainable. ( 15 ) TECHNICALLY Sri rama murthy may be right. But is well established principle that technical objections should not be allowed to defeat substantial Justice as the object of procedure is to facilitate and not to obstruct the administration of justice. In the light of above principles, the court has to consider, whether the decree of the trial court is wiped out for all practical purposes, in view of the same being merged with the decree of this court, and what consequences would ensure, if it is to be held so. And what would be the consequences, in the case the execution application already filed, is allowed to continue? Whether any injury of any substantial nature would be caused to the judgment-debtors, resulting in the deprivation of any legal right accrued to them on account of lapse of time? ( 16 ) I do not think that in a case where the revisional/appellate court merely affirms the decree of the trial court, and does not affect the terms of the decree in any way whatsoever, the fiction of merger should be carried, so far as to lead to inequitable result that the decree-holder should be put to the inconvenience of filing a fresh application, thereby indefinitely postponing his right to reap the fruits of the decree. The continuation of the execution proceedings after the dismissal of the revision, if considered to be bad, it is only bad in form, which is merely an error of procedure and not an error of jurisdiction. Non-mentioning of the order of this court in the application for execution of the decree, though a defect, is not a material defect, invalidating the application and such a defect is always curable. Non-mentioning of the order of this court in the application for execution of the decree, though a defect, is not a material defect, invalidating the application and such a defect is always curable. ( 17 ) IN the light of the above, i think, the execution application already filed and kept pending on account of the order of stay of the decree sought to be executed by this court, in a subsequently filed revision petition, shall be allowed to be resumed, after the dismissal of the revision petition, where the decree sought to be executed has been affirmed without affecting the terms of the decree in any manner whatsoever. The continuation of the execution proceedings on that application, would not result in the deprivation of any right of the judgment-debtors, as no such rights have been accrued to them, by lapse of time and they have already raised all conceivable objections available to them. When the decree of the trial court is affirmed by this court, the decree of the trial court is not wiped out for all practical purposes to apply the doctrine of merger in the manner as contended by judgment-debtors, would lead to palpably absurd and inequita ble results. The decree-holder would be put to inconvenience of filing a fresh application for execution of the decree of this court which is nothing but the same decree and persue the execution proceedings 'de novo', there could conceivably no point in such unproductive endless multiplicity of proceedings. It is inequitable to drive the decree-holder to a fresh execution proceedings in absence of any variations or modifications to the decree. If there is any formal defect in the application, the same may be amended. It is also submitted by Sri g. s. vishveswara, the learned counsel for decree-holder, that such application is also filed. Moreover the parties to this execution application have understood the case of each other and have contested the matter and the judgment-debtors have raised objections available to them. The property in respect of which the execution is filed is known to both the parties. Its identity is not in dispute and also the decree in respect of which the execution is sought is also not in dispute. The property in respect of which the execution is filed is known to both the parties. Its identity is not in dispute and also the decree in respect of which the execution is sought is also not in dispute. ( 18 ) THAT, for the reasons aforesaid, i answer the question in the affirmative and hold that the decree-holder whose application in execution of his decree has been pending and during the pendency of the revision petition, on account of stay of decree by this court in revision, can continue execution proceedings on that application, after the disposal of the revision. ( 19 ) THE next contention urged by Sri rama murthy is that the execution application is not maintainable against the legal representa lives of the deceased judgment-debtor without getting the decree amended as has been held by the High Court of Kerala in the case of andi vasudeva v bhagavathi pilial vasudeva pillai, AIR 1963 Kerala 163. It was a case in which the decree was passed against the deceased respondent. The decree was passed after the death of the first respondent and the legal representatives were not brought on record and that decree was sought to be executed. Under those circumstances, the Kerala high court has held that under Section 51 (2) of the C. P. C. the decree cannot be executed in the form it was sought to be executed without getting the same amended. But this case is dislinguishable from Kerala case. It is admitled that, the decree in ihis case was made during the life-time of the deceased judgment-debtor and he contested the matter up- to this court. On his death the decree is being soughl to be execuled against his legal represenlalives in respect of the schedule property, which is the subject-matler of original proceedings. Under these circumstances, it is seclion 50 of the Code of Civil Procedure which is attracted and not Section 52. Therefore this conlenlion of Sri rama murthy is also rejected. ( 20 ) FOR the reasons stated above, i rejecl the revision petition. In the circums tances of the case, the parties are directed to bear their own costs. However the judgment-debtors are given 2 months' time from today to quit and deliver vacanl possession of the premises lo the decree-holder. --- *** --- .