ORDER 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. 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 court would be executable. 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 court would be executable. Reference may be made to : Lekha vs. Bhauna, (1896) ILR 18 Allahabad 101; Rafagat vs. B.B. Tuwaif, (1917) 39 Allahabad 393; Sham Mondal vs. Satinath, (1916) 94 Calcutta 954; Batuknath vs. Munnideui, (1914) 36 Allahabad 284; Abdul Majit vs. Jawahirlal , (1914) 36 Allahabad 350 (P.C.), Kalimuddin vs. Kalimuddin, AIR 1924 Calcutta 530; Patloji vs. Ganu , (1891) 15 Bombay 370. 7. Now let us examine as to whether it is the decree of the trial Court that has been sought to be executed. Column 1 of the Tabular Statement provides for number of the suit. Therefore, in column 1 the particulars of the appeal and other proceedings cannot be given. When a column prescribes a particular fact, only that fact is to be included and nothing more can be inserted the rein. Column 2 requires giving of names of the parties. Whether in appeal or the suit the parties are same but the names of the parties as is appearing in the suit is to be given otherwise there would be confusion in the understanding. Since column 2 follows column 1, it is the parties as described in the suit are to be given. However, when a decree is passed the parties remain the same and there is no question of change of the parties as between the decree holders and the judgment debtors, though they may, in appeal be transposed as respondents and appellants respectively. Thus it is not necessary to mention the names of the parties as appearing in the appeal or otherwise. It is only the names of the parties appearing in the decree of the last court that is to be mentioned having reference to the suit keeping the names of the decree holder at the top and that of the judgment debtor at the bottom. There cannot be any other scope for inserting the names of the parties in column 2. Column 3 following column 2 requires the date of the decree. There cannot be any other scope for inserting the names of the parties in column 2. Column 3 following column 2 requires the date of the decree. In this column it is the date of the decree that is sought to be executed is to be mentioned. Having regard to the three columns it is definitely the date of the decree of the last court that has to be mentioned in column 3. Inasmuch as in an execution application the decree is sought to be executed. Therefore column 3 necessarily requires the date of the decree which is sought to be executed. There can not be any two opinion with regard thereto. Column 4 following column 3 requires the information as to whether any appeal has been preferred. Thus in column 4 the particulars of the appeal if pending is to be disclosed. It may be noted that column 4 uses present perfect tense. Therefore it is the particulars of the appeal against the decree sought to be executed that is required to be given in column 4. In case details of the appeal or otherwise from the trial court's decree is mentioned in column 4 indicating that the date of decree mentioned in column 4 is the last court's decree the same would not render the application defective. Though column 4 by reason of use of present perfect tense clearly indicates that it is the appeal against the decree sought to be executed that is required to be mentioned, yet, mentioning of those information though redundant, can not be construed to make the application defective. 8. Now we may examine the question having regard to the relevant procedure provided for execution of a decree. Order 21 Rule 11 of the Code of Civil Procedure (CPC) in sub-rule. (2) provides that except cases covered under sub-rule (1) an application for execution must be made in writing. Such application is required to be signed and verified by the applicant or a person, proved to the satisfaction of the Court, acquainted with the facts of the case. The application requires to contain the particulars mentioned in clauses (a) to (j) of sub-rule (2) in a tabular form. The particular as required under the said clauses are identical with those provided in Form 1 Appendix-E to the Original Side Rules (OS Rules), except 3 additional particulars required under the latter. The application requires to contain the particulars mentioned in clauses (a) to (j) of sub-rule (2) in a tabular form. The particular as required under the said clauses are identical with those provided in Form 1 Appendix-E to the Original Side Rules (OS Rules), except 3 additional particulars required under the latter. There is nothing in Order 21 Rule 11 to spell out that enclosing of the original decree or copy thereof is obligatory, in view of sub-rule (3) which requires filing of copy if the court in its discretion directs to do so. But Chapter XVII Rule 10 of the Original Side Rules makes it mandatory by specifically providing that "In all cases, the application shall be accompanied by a duly certified copy of the decree." Rule 10 Chapter XVII of Original Side Rules further requires that in addition to the particulars mentioned in Order XXI Rule 11 (2) the application shall contain the particular mentioned in clauses (a) to (c) of rule 10 Chapter XVII of Original Side Rules. The other distinction is that all application for execution under the O.S. Rules are to be made in Form-1 Appendix-E to the said Rules and the same is to be signed and verified by the Judgment Creditor. 9. Having regard to the above provision it is clear that the date of decree in column 3 refers to the last decree. Reference may be made to Golam vs. Goljam, (1898) 25 Cal. 109. 10. The other point that has been urged by Mr. Deb is that the decree that is being sought to be executed has not been annexed. As discussed above under the O.S. Rules "a duly certified copy of the decree" is to be enclosed along with Form 1 Appendix-E thereof. It may be noted that Rule 10 Chapter XVII O.S. Rules used the article 'a' before the phrase 'duly certified copy of the decree'. Thus it refers to only one decree. Such decree necessarily means the decree sought to be executed i.e. the last courts' decree. Article 'a' therefore refers to the decree sought to be executed and it is only the last court's decree alone which can be executed. Having regard to the principle of law as discussed above there is no scope to hold otherwise. 11. Such decree necessarily means the decree sought to be executed i.e. the last courts' decree. Article 'a' therefore refers to the decree sought to be executed and it is only the last court's decree alone which can be executed. Having regard to the principle of law as discussed above there is no scope to hold otherwise. 11. Having regard to the discussion made above it appears that the date of decree that has been mentioned in column 3 is the date of the decree of the Court of first instance. Therefore, it is a defect in the tabular statement. Such defect is however curable and it is not a material defect, as was held in Seth Fulchand Hirchand vs. N.B. Chandurkar, AIR 1961 Bombay 145. In case where an execution is levied during the pendency of an appeal against the decree and in case the appeal is dismissed it does not require filling of a fresh application for execution though in law the decree of the trial Court merges in that of the appeal Court. The application already filed then stands revived and required to be suitably amended. It was so held in Babuaram Lal vs. Debdas Lala, AIR 1959 Calcutta 73, Chandilal vs. Badri Prasad, AIR 1960 Rajasthan 249. Thus the defect if there be any in an application for execution with regard to the description of the date of the decree to be executed does not seem to be a defect material for the purpose of dismissal of the application. Even if the application for execution is dismissed, since the principle of res judicata does not apply in an execution proceedings, it is open to the decree holder to file a fresh application. If fresh application can be permitted, in that event removal of defect can also be permitted. In Jugal Kishore Saraf vs. Raw Cotton Company, AIR 1955 se 376, the Apex Court had held that the defect in an application for execution can be cured by amendment of the execution application. It is also clear from Rule 17 Order 21 C.P.C. that the defect can be remedied with the leave of the court within the time that might be fixed by it. In M/s. T.A. Dorbar & Co. It is also clear from Rule 17 Order 21 C.P.C. that the defect can be remedied with the leave of the court within the time that might be fixed by it. In M/s. T.A. Dorbar & Co. vs. Union Bank of India, (1992) 3 Bombay CR 702 (709), the Bombay High Court had held that if there is a defect in the execution application, the same cannot be rejected unless the defect is pointed out to the applicant and the same is not remedied by the applicant on being called upon by the Court so to do. 12. Thus in my view column 3 require the incorporation of the date of the last decree. The particulars given in column 4 may satisfy the test that it is the last court's decree as mentioned in column 3 that is being sought to be executed. 13. But at the same time the decree has to be annexed along with the Tabular Statement which is being sought to be executed. The original decree of the last court, under the Original Side Rules is required to be annexed with the Tabular Statement. If the last court's decree is not annexed in that event it may be a defect but not an illegality. When the form is not correctly filled up it would be defective, but not illegal. The defect being that of the absence of the last court's decree and the defect in the date of the decree, would not attract the mischief of dismissal of the execution proceedings. Such defect or irregularity not tending to illegality can be permitted to be removed. 14. In the present case it is the date of the decree of the trial court has been mentioned 'and the certified copy of the trial Court's decree has been annexed with the Tabular Statement. It is contended by the decree holder that in the affidavit supporting the application for execution the decree of the last court has been annexed. But those are not original certified copies, but xerox copy of the certified copies. This will not suffice the requisite of the execution application. The original certified copies of the decrees of the appeal court or that of the Appeal Court, as the case may be, is required to be annexed. 15. But those are not original certified copies, but xerox copy of the certified copies. This will not suffice the requisite of the execution application. The original certified copies of the decrees of the appeal court or that of the Appeal Court, as the case may be, is required to be annexed. 15. In the facts and circumstances of the case, therefore, leave is granted to the decree holder to remove the defects by correcting the date of the decree sought to be executed in column 3 and annexing the original certified copy of the appeal court's decree or that of the Appeal Court as mentioned in Column 4 of the Tabular Statement within a period of two weeks. 16. Let this matter appear in the list on February 27, 2001. 17. All parties including the department are to act on a xerox signed copy of this Dictated Order on the usual undertaking. Application disposed of.