1. The only question for determination in this execution second appeal is whether a decree-holder, whose application in execution of his decree has been stayed by an appellate Court, can continue execution proceedings on that application after the dismissal of the judgment-debtor's appeal. The Munsif of Basti held that he could; the Additional District Judge of Basti on an appeal against the Munsif's order held that he could not. The argument advanced on behalf of the judgment-debtor which he accepted was that the decree of the trial Court had merged in the decree of the appellate Court and that it was the latter decree alone therefore which could be executed. The original execution application became infructuous and another formal application drawn up in accordance with the provisions of Rule 11 of Order 21, Civil P.C., was required. The decree-holder in the present case had merely asked for the revival of the previous application. The Additional District Judge accordingly quashed the proceedings, although the decree, which was for the possession of certain property, had in fact already been executed, an amin having delivered possession to the decree, holder.
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 Gobardhan Das v. Gopal Ram ('85) 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. An objection 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 Saroop Narain v. Suraj Mohan ('42) 29 A.I.R. 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 Ekram Husain v. Mt. Umatul Rasul ('31) 18 A.I.R. 1931 Pat. 27 agreed with the view taken by this Court in the case cited and also in Shohrat Singh v. Bridgman ('82) 4 All. 376 (F.B.) that where a Court of appeal affirms, reverses, or modifies the decree of the first Court, the decree 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.
3. We are of the same opinion and we might add that there would be still less reason for quashing the proceedings and re-storing the status quo ante, where, as in the present case, possession has been obtained by the decree-holder and the decree thus satisfied. We accordingly allow this appeal, set aside the order of the lower appellate Court and restore that of the Munsif with costs to the appellant throughout.