JUDGMENT R.S. Pathak, J.
1. These are two appeals by a judgment-debtor arising out of execution proceedings.
2. Ganga Prasad and Premraj filed suit No. 65 of 1949 against Mithan Lal, the present appellant, which suit was dismissed on November 30, 1950. An appeal by the plaintiffs was allowed on July 30, 1951, when their suit was decreed by the lower appellate court. Against the decree of the lower appellate court Mithan Lal preferred an appeal to this Court. On September 19, 1951, meanwhile, the decree-holders applied for execution of the dacree of the lower appellate court, but these execution proceedings were stayed during the pendency of Mithan Lal's appeal in this Court. That appeal was dismissed by this Court on December 19, 1954.
3. It appears that on December 27, 1951 when the execution application was pending, the original decree-holders sold the decree under execution to Thana. Thereafter on February 15, 1955, an application was made by Thana for being substituted in place of the original decree-holders. This application was allowed on May 5, 1955. The execution application was, however, dismissed for default on August 16, 1955. An application for review of the order dated May 5, 1955, allowing Thana's substitution was allowed and the substitution application was also dismissed on August 17, 1955.
The first execution application having been dismissed, Thana filed a fresh execution application on August 25, 1955, along with a substitution application. This application was numbered as Miscellaneous Case No. 148 of 1955 and has given rise to the present Execution Second Appeal No. 2849 of 1959. An objection was filed by Mithan Lal which was numbered as Miscellaneous Case No. 157 of 1956 giving rise, to the present execution Second Appeal No. 2850 of 1959. The executing court allowed Thana's substitution application and dismissed Mithan Lal's objection. Mithan Lal consequently filed two appeals, but these were also dismissed by the learned District Judge, Bulandshahr. Mithan Lal now appeals to this Court.
4. It is Contended that the decree of the lower appellate court, which has been transferred to Thane, could not be executed, after the decree of this Court dismissing Mithan Lal's second appeal on 19th November, 1954, that it was the latter decree which alone could be executed, the lower appellate court's decree having merged into the decree of this Court. This contention has no force, fn Saroop Narain v. Suraj Mohan, AIR 1942 Oudh 84 a Bench of the Oudh Chief Court declared that a fresh execution application was not necessary in such circumstances.
In Pateshwari Prasad Singh v. Abdul Karim, AIR 1945 All 496, it was laid down by this Court that although where a Court affirms, reverses, or modifies the decree of the first court and the decree of the appellate Court was the only decree capable of execution, yet where the appellate decree affirmed the decree of that first court an objection that the decree of the lower appellate court could not be executed was a mere technical objection which should not be allowed to prevail. It was held that a decree-holder, whose application in execution of his decree had been stayed by an appellate court, could continue execution proceedings on that application after the dismissal of the judgment-debtor's appeal.
Reliance was placed for the appellant on Shohrat Singh v. Bridgman, ILR 4 All 376, Muhammad Sulaiman Khan v. Muhmmad Yar Khan, ILR 11 All 267 (FB), Muhammad Sulaiman Khan v. Fatima, ILR 9 Ail 104 (FB), Nanchand v. Vitfiu, ILR 19 Bom 258, Chandar Kanta v. Lakshman Chandra, AIR 1917 Cal 417. Hand Kumar Singh v. Bilas Ram, AIR 1918 Pat 260 and Harilal Dalsukhram Saheba v. Mulchand Asharam, AIR 1930 Bom 225.
5. These cases are clearly distinguishable. Either the case was one where an execution application was made for the first time after the appellate court decree superseded the decree under appeal or it was 3 case where the question which arose was as to the period of limitation for filing an execution application. Some of these cases were considered and distinguished in AIR 1942 Oudh 84 (Supra) and AIR 1946 All 496 (Supra).
6. On November 19, 1954, when this Court dismissed Mithan Lal's second appeal, the execution application filed by the original decree-holders was still pending and in fact was dismissed only subsequently on August 16, 1955. It is urged for the appellant that upon the dismissal of that execution application, Thana should have filed an application for execution of the decree of this Court. This argument proceeds upon the basis that the decree of this Court in second appeal was the only decree which could be executed, the decree of the lower appellate court having merged into it, and that as it was the decree of the lower appellate court alone which had been transferred to Thana, any execution application, filed by him was not maintainable. It is difficult to accept this contention. The rights which accrued to Thana upon the acquisition of the lower appellate court decree entitled him in law to the benefits of the decree passed by this Court in second appeal, and the only question, therefore, which remains is whether he should have put the decree of this Court into execution instead of the lower appellate court's decree. Now there is no doubt that the courts, in some of the decisions mentioned above, have laid down that even though the appellate court confirms the decree under appeal, it is the appellate decree which alone can be executed. The Supreme Court, however, in State of U. p. v. Mohammad Nooh, AIR 1958 SC 86 has declared :-
"While it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the. purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Mt. Munni Dei, 41 Ind App 104 : AIR 1914 PC 65, or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh, 53 Ind Apo 197 : AIR 1926 PC 93. But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : ILR 46 Cal 670 at pp. 678 and 679 : AIR 1918 PC 151 at pp. 152-153, whatever be the theory under other systems of law, under the Indian Law procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or ord3r in jeopardy but until it is reversed or modified it remains effective."
The correctness of these principles has not yet been doubted. Reference was made to the decision of the same court in Madan Gopal v. Secretary to the Govt. of Orissa, AIR 1962 SC 1513. The decision in Madan Gopal Rungta's case, AIR 1962 SC 1513, however, appears to have turned upon the fact that the rule under consideration expressly provided that the order of the Central Government passed in review would prevail and would be the final order. I would, therefore, hold that the execution application filed by Thana on August 25, 1955, was a good execution application. In any event the objection is a technical one, and upon the facts of the present case should not be allowed to prevail.
7. The neat contention raised for the appellant is that the substitution application filed by Thana was barred, by res judicata, that earlier substitution application, having been dismissed. Now it is not clear whether the former substitution application was dismissed on merits. On the contrary it appears to have been dismissed for default. In any event, as this is a question: which would require an investigation into the facts, and as the question was not taken before the courts below, I cannot allow it to be raised now.
8. The last contention urged for the appellant is that the execution application of August 25, 1955, was barred by limitation. It is urged that Thana not having been substituted in place of the original decree-holders before the former execution application had been dismissed, he could not avail of the benefit of the pendency of that execution application for the purpose of limitation qua his execution application of 1955. This contention must also be rejected. It is not necessary that upon the transfer of a decree by the decree-holder to a third party during the pendency of exacution proceedings, the transferee must be brought on the record in order to enable the execution proceedings to continue. The execution proceedings cam continue in the name of the original decree-holders, in spite of the transfer. This was the view taken. by this Court in Banke Behari Lal v. Raghubar Dayal, AIR 1930 All 380.
9. All the contention of the appellant having failed, these appeals must be dismissed. The appeals are accordingly dismissed with costs.