JUDGMENT : This writ petition is under Article 227 of the Constitution of India whereby and where under order dated 27.05.2016 passed in Execution Case No. 4 of 2003 has been assailed whereby the relief sought for by the applicant, as has been made in the petition dated 01.08.2015, seeking amendment in the plaint pertaining to execution, has been allowed. 2. The brief facts of the case, as per the pleadings made in the writ petition, is that a declaratory suit has been filed by the plaintiff/respondent/decree holder, being Title Suit No. 88 of 1996 before the Court of Munsif, Giridih for a decree of perpetual and permanent injunction restraining the defendants from eviction and restraining them from making any change in the nature of the suit and subsequently by way of amendment seeking relief for compelling the defendant to restore the possession of the suit premises to the plaintiff and in case of default, the plaintiff be put in possession therein through the process of law. The suit has been dismissed vide judgment dated 23.06.1998 and decree sealed and signed on 06.07.1998. The plaintiff had preferred appeal before the District Judge, Giridih being Title Appeal No. 17 of 1998, which was allowed in terms of order dated 19.09.2002 by passing an ex-parte judgment and decree sealed and signed on 30.09.2002. The defendants/respondents/petitioners herein had preferred Misc. Appeal being M.A. No. 37 of 2004 before this Court, which was allowed in terms of order dated 22.02.2007 by setting aside order dated 19.09.2002 and decree sealed and signed on 30.09.2002 and remitted the matter to the appellate Court for deciding the appeal afresh. The appellate Court in terms of judgment dated 02.08.2007 and decree sealed and signed on 21.08.2007 allowed the appeal on contest and set aside the judgment dated 23.06.1998 and decree sealed and signed on 06.07.1998 passed by Munsif, Giridih in Title Suit No. 88 of 1996, against which, the petitioners have preferred Second Appeal, being S.A. No. 186 of 2007, which was dismissed in terms of judgment dated 28.02.2014. 3. The respondent/plaintiff/decree holder had filed Execution Case, being Execution Case No. 4 of 2003 for execution of decree dated 19.09.2002 passed in Title Appeal No. 17 of 1998. 4. 3. The respondent/plaintiff/decree holder had filed Execution Case, being Execution Case No. 4 of 2003 for execution of decree dated 19.09.2002 passed in Title Appeal No. 17 of 1998. 4. After passing of the judgment by the first appellate Court on remand on 02.08.2007, decree sealed and signed on 21.08.2007, which was affirmed by second appellate Court in S.A. No. 186 of 2007, a petition was filed on 01.08.2015 under Order XXI Rule 17 (1) and (2) read with Section 151 of the Code of Civil Procedure (in short 'CPC') for addition/amendment in the Execution Petition dated 17.02.2003 for in corp orating therein the following amendments: “(I).That in column (c) of the execution petition “20.06.2014 (S.A. No. 186/2007” be added. (ii).That in column (d) of execution petition in the last of said column “(S.A. No. 186/2007) be added along with “that the second appeal filed by judgment debtor is dismissed thereby learned Additional District Judge, Fast Track Court -II, Giridih in T.A. No. 17/1998 was allowed with the contest.” 5. The petitioners have filed objection to the aforesaid application by way of rejoinder dated 19.09.2015 stating inter alia therein that the said application is not maintainable under the provisions of Order XXI Rule 17 (1) and (2) CPC as the same is applicable only if those amendments fulfills the requirement under Rule 11 to 14 of Order XXI CPC and after taking into consideration the rival stand taken by both the parties order dated 27.05.2016 has been passed, which is impugned in this writ petition. 6. Mr. Sudhir Kumar Sharma, learned counsel for the petitioners has submitted by taking aid of the stand, as stated at paragraph 13 of the writ petition that petition under Order XXI Rule 17 (1) and (2) read with Section 151 of the CPC is not maintainable and further ground has been agitated by taking aid of Section 37 of the CPC and has submitted that the original Court has got no jurisdiction to proceed with the execution proceeding since in the facts and circumstances of the case, the Court of appeal will be said to be the Court of first instance and as such the execution proceeding ought to have been maintained before the appellate Court by way of Court of first instance for the reason that the suit has been dismissed in the original Court. 7. 7. After having heard learned counsel for the petitioner and on going across the pleadings, as made in the writ petition, the undisputed facts in this case is that a suit has been filed by the respondent being Title Suit No. 88 of 1996 for a decree of perpetual and permanent injunction restraining the defendants from eviction and restraining them from making any change in the nature of the suit and further by way of amendment to compel the defendant to restore the possession of the suit premises in favour of plaintiff. The suit has been dismissed vide judgment dated 23.06.1998, against which, the plaintiff had preferred appeal being Title Appeal No. 17 of 1998, which was allowed in terms of order dated 19.09.2002 by passing an ex-parte judgment and decree sealed and signed on 30.09.2002, that has been appealed before this Court by way of preferring Misc. Appeal being M.A. No. 37 of 2004 which was allowed in terms of order dated 22.02.2007 by setting aside order dated 19.09.2002 and decree sealed and signed on 30.09.2002 and the matter was remitted to the appellate Court for deciding the appeal afresh, in terms thereof, the appeal was decided on contest vide judgment dated 02.08.2007 and decree sealed and signed on 21.08.2007 allowed the appeal, against which, the petitioners have preferred Second Appeal, being S.A. No. 186 of 2007, which was dismissed in terms of judgment dated 28.02.2014. 8. The respondent/plaintiff/decree holder had filed Execution Case, being Execution Case No. 4 of 2003 for execution of decree dated 19.09.2002 passed in Title Appeal No. 17 of 1998. 9. After passing of the judgment by the first appellate Court on remand, the judgment dated 02.08.2007 and decree sealed and signed on 21.08.2007 was affirmed by second appellate Court in S.A. No. 186 of 2007, in which, a petition has been filed on 01.08.2015 under Order XXI Rule 17 (1) and (2) read with Section 151 of the Code of Civil Procedure seeking therein the addition/amendment, which is required to be amended in the interest of justice, i.e.: “(i).That in column (c) of the execution petition “20.06.2014 (S.A. No. 186/2007)” be added. (ii).That in column (d) of execution petition in the last of said column “(S.A. No. 186/2007) be added along with “that the second appeal filed by judgment debtor is dismissed thereby learned Additional District Judge, Fast Track Court -II, Giridih in T.A. No. 17/1998 was allowed with the contest.” 10. Objection to the said petition has been filed by the judgment debtor raising the issue of maintainability of petition filed under Order XXI Rule 17 (1) and (2) CPC. 11. The petitioner has taken two grounds; The first one is maintainability of petition filed under Order XXI Rule 17 (1) and (2) read with Section 151 of the CPC and; second one is about the applicability of provision of Section 37, raising question about maintainability of execution proceeding by the original Court and according to the petitioner since the original Court has dismissed the suit and the same has been reversed by the appellate Court, therefore, in view of Section 37 CPC, the appellate Court would be said to be the Court of first instance as such the execution will be initiated by the Court of first instance. 12. This Court has proceeded to examine these two submissions. It would be proper to first examine the second ground first, which pertains to applicability of Section 37 of the CPC. This Court, therefore, is of the view that before answering this, provision of Section 37 CPC needs to be referred herein, which reads as under:: “37.Definition of Court which passed a decree. – The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include, – (a) where the decree to be executed has been passed in exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. From the provision of Section 37 of the CPC, it is evident that the decree of the appellate Court would be construed to be the decree passed by the Court of first instance since the appeal is continuation of the suit, therefore, when a decree for a specific performance has been dismissed by the trial Court, but decreed by the appellate Court, it should be construed to be in the same suit. The aforesaid provision has been discussed by the Hon'ble Calcutta High Court in the case of Sm. Lichubala Biswas & Others Vs. Jindar Mondal & Other as reported in AIR 1990 Calcutta 151 as also by Hon'ble Apex Court in the case of Ramankutty Guptan Vs. Avara as reported in (1994) 2 SCC 642 , in which, it has been laid down that the decree of the appellate court would be construed to be the decree passed by the court of first instance. An appeal is a continuation of the suit. Therefore, when a decree for specific performance has been dismissed by the trial court, but decreed by the appellate court, it would be construed to be in the same suit. In view of the aforesaid consideration by the Hon'ble Courts and taking into consideration the provision of Section 37 of the CPC, this Court is of the view that the submission made by the petitioner in this regard has no force, accordingly, the same is rejected. 13. So far as the ground pertaining to maintainability of petition under Order XXI Rule 17 (1) and (2) of the CPC is concerned, before answering the aforesaid issue, the provision of Order XXI Rule 17 (1) and (2) needs to be referred herein, which reads as under: “17.Procedure on receiving application for execution of decree. – (1)On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it. [(1-A)If the defect is not so remedied, the Court shall reject the application: Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of rule 11, the Court shall, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceeding) the amount and make an order for the execution of the decree for the amount so provisionally decided.] (2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. 14. It is evident from the aforesaid provision that the same speaks about the initial stage meaning thereby the execution, if filed, the executing court is required to ascertain whether such was the requirements under rules 11 to 14, as may be applicable to the case have been complied with. 15. Under the aforesaid provision, a duty has been casted upon the Court to make a preliminary scrutiny to determine whether the requirement of rule 11 to 14 under Order XXI has been complied with and to allow amendment of any defect that may be found by granting some time instead of rejecting it straightway. The purpose is to allow an opportunity to be given at the very outset of making such application so that formal defects of the nature specified in Rule 11 to 14 may be rectified. 16. The fact, which is not in dispute, is that admittedly the suit has been dismissed by the original Court but said judgment has been reversed by the appellate Court having not been affirmed by the second appellate court. 16. The fact, which is not in dispute, is that admittedly the suit has been dismissed by the original Court but said judgment has been reversed by the appellate Court having not been affirmed by the second appellate court. Further, it is admitted fact that after passing of the judgment by the first appellate court, the execution case has been filed in the year 2003 being Execution Case No. 4 of 2003 and while the same was pending subsequent development about judgment pronouncement in the second appellate court in Second Appeal No. 186 of 2007 has come and, therefore, a petition was filed on 01.08.2015 by seeking relief of addition of the judgment passed in S.A. No. 186 of 2007 by way of filing a petition under Order XXI rule 17 (1) and (2) read with Section 151 CPC. 17. As has been stated herein above that the provision of Order XXI Rule 17 (1) and (2) is to be looked into to make preliminary scrutiny to determine whether requirement of rule 11 to 14 have been complied with. Here, it is not the question of fulfilling provisions of rule (11) to (14) rather the amendment has only been sought for by invoking order 17 (1) and (2) by inserting the judgment pronounced by the second appellate Court and, therefore, the executing court has considered it formal in nature and rightly considered it as because it is not a question of making a preliminary scrutiny rather it is a question of insertion of the order passed by the second appellate Court as such the application has been filed under Order XXI Rule 17 (1) and (2) CPC for the purpose of insertion of the subsequent development as stipulated in the petition dated 01.08.2015 as referred herein above, which is formal in nature. 18. Even accepting the contention of the petitioner that Order XXI Rule 17 (1) and (2) CPC should not have been entertained, the question of prejudice will come that even if it has been accepted under the aforesaid provision what prejudice would be caused to the petitioner. 19. 18. Even accepting the contention of the petitioner that Order XXI Rule 17 (1) and (2) CPC should not have been entertained, the question of prejudice will come that even if it has been accepted under the aforesaid provision what prejudice would be caused to the petitioner. 19. According to this Court no prejudice would be said to be caused since the fact about dismissal of the second appeal confirming the judgment passed by the first appellate court is not in dispute, therefore, this Court is of the view that on the basis of above factual aspect, as narrated herein above, while entertaining the petition filed under Order XXI Rule 17 (1) and (2) CPC, no illegality said to have been committed by the trial Court. 20. Keeping these fact into consideration, the amendment sought for is formal in nature and would not cause any prejudice to the petitioner, no interference is required by this Court in exercise of power conferred under Article 227 of the Constitution of India. 21. Accordingly, the writ petition stands dismissed.