1. This is a judgment-debtor's appeal arising out of an execution matter. A preliminary decree for sale was passed on 30th May 1916 and an appeal was preferred from that decree to the Court of the District Judge who modified the decree finally on 27th November 1919. Between the passing of the decree by the District Judge and the order of the High Court a final decree was passed by the Court of first instance on 22nd January 1918. The decree-holder applied for execution of the final decree as originally prepared. This application was, of course, rejected as the decree was based on the preliminary decree which had been modified on appeal by the High Court. Ultimately the decree-holder on 20th February 1922 applied to the Court of first instance for preparation of a new final decree or the amendment of the old one in accordance with the preliminary decree passed by the High Court in second appeal. The learned Judge instead of ordering that a new decree should be prepared on a separate sheet of paper amended the old decree and treated it as a decree in favour of the decree-holder. It is noteworthy that the application for the preparation of the final or an amended decree was made within three years of the order passed by the High Court in second appeal. That application was accordingly within time. The present application is for execution of the decree prepared on 20th February 1922 and was filed on 11th March 1922. The judgment-debtor took the objection that the decree was not executable inasmuch as the Court had no jurisdiction to amend the final decree which was based on a preliminary decree which had been modified on appeal by the High Court. The Court of first instance allowed this objection but on appeal this objection has been overruled.
2. The learned vakil for the objector relies on the Full Bench case of Muhammad Sulaiman Khan v. Fatima (1889) 11 All 314 and the Privy Council case of Brij Narain v. Tejbal Bikram Bahadur (1910) 32 All 295. Both these cases are clearly distinguishable. In the Full Bench case there was a decree passed by the First Court which was affirmed on appeal. As soon as the decree was affirmed on appeal the Court of first instance ceased to have any jurisdiction to deal with the matter. It, however, amended its decree purporting to bring it in accordance with the judgment of the High Court. The Full Bench pointed out that the Court had no jurisdiction to do anything of the kind because it was the appellate Court alone which had to prepare its own decree and it was that decree which would have to be executed. Similarly in the case before their Lordships of the Privy Council the First Court has passed a decree under Section 88, T.P. Act, which was appealed against to the High Court and the appeal was partially allowed. The Court at first instance also passed a decree under Section 89 of the Act but as far as I can judge from the judgment this latter decree was not appealed from. Subsequently the Court of first instance amended not only the decree under Section 89 but also the decree tinder Section 88 by striking out therefrom the provision for future interest. Obviously when the decree under Section 88 had been appealed from to the High Court, the Court of first instance had no power to amend it. It, therefore, acted without jurisdiction in doing so. In the present case it has to be noted that the Court of first instance did not purport to amend the preliminary decree which it had passed previously but accepted the preliminary decree as ultimately passed by the High Court. The prayer of the decree-holder was either to prepare a new final decree in terms of the preliminary decree passed by the High Court or to amend the previous final decree so as to bring it in accordance with the preliminary decree. The final decree could not possibly have been prepared by the High Court. It was the first Court only which could prepare it and it had full jurisdiction to prepare it. The present case, therefore, is clearly distinguishable.
3. In my opinion the two prayers asked for by the decree-holder in his application dated 20th February 1922 were substantially the same. His prayer was that a final decree should be brought into existence which should be in accordance with the High Court's preliminary decree, whether this was a decree prepared on a new sheet of paper and called a new final decree or an amended decree on the old sheet of paper. In my opinion the Court of first instance had jurisdiction to do both. It could prepare a new final decree in terms of the preliminary decree passed by the High Court or it could amend its own final decree, (which had never been appealed from) and bring it in accordance with the High Court's preliminary decree. The application was within time and there was no obstacle in the way to the relief being granted.
4. The decree which was thus prepared can be treated valid in either way and is executable. The appeal has no merits and is dismissed with costs including fees on the higher scale.