P.V. Dixit, J.
1. The facts giving rise to this appeal arc that on 3rd July 1948 a decree for possession of certain lands was passed by the Court of Munsiff, Khargone, in favour of the respondent arid against the appellant. On 9th October 1948 the respondent filed an application for execution of the decree in the Court of Munsiff, Khargone. The execution of the decree was, however, stayed until 19'h September 1949 by an order of the District Judge of Mandleshwar in an appeal preferred by Mannalal. That appeal was dismissed. Thereupon Mannalal preferred a second appeal in the Madhya Bharat High Court and the execution of the decree was again stayed by the High Court till the disposal of the appeal filed by Mannalal.
The appeal filed in the High Court was also dismissed on 27th February 1951. A review petition was then filed by Mannalal in the Madhya Bharat High Court which was rejected on 25th April 1955. Thereafter the decree-holder moved the Court in which he had filed an application for execution of the decree of the original Court on 9th October 1948 for resuming the execution proceedings. The executing Court, however, directed him to amend his application for execution in accordance with tile judgment and decree of the Madhya Bharat High Court upholding the decree of the original Court.
Accordingly the decree-holder amended the application. On 22nd December 1955 the judgment-debtor appellant filed an objection urging that theexecution application was not maintainable as the decree of the trial Court had merged is the decree of the High Court and that the stay-order passed by the High Court was automatically vacated when the second appeal was dismissed on 27th February 1951 and the decree-holder had not applied for the execution of the decree passed by the High Court within three years of the date of the decree, namely, 27th February 1951. The learned Civil Judge, Second Class, Kbargone, dismissed the objection. The judgment-debtor then filed an appeal in the Court of the District Judge of Mandleshwar. That was also rejected. Hence the present appeal by the judgment-debtor.
2. Mr. Patel, learned counsel for the appellant, argued that when once an appellate decree was passed it was the only decree which could be executed and the decree-holder should Have filed a fresh application for execution within three years of thedate of the decree of the High Court; that the application which the judgment-debtor had filed on 9th October 1948 for execution of the decree of the original Court could not be amended under Order 21 Rule 17 C. P. C. so as to make it one for execution of the decree of the High Court as the amendment could not be said to be a formal amendment within Rule-17; that the amendment was of substantial nature in that after the amendment the original application for execution did not remain of the same nature but became one for execution of a new decree; and that such an amendment could not be allowed when on its date more than three years had elapsed after the passing of the decree by the High Court on 27th February 1951.
In support of this contention learned counsel relied on Harilal v. Mulchand, AIR 1930 Bom 225; Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma, AIR 1950 SC 6; Prayagdas v. Mt Indirabai, AIR 1948 Nag 189; Keshav v. Krishna, AIR 1939 Nag 107; and Shrildsandas v. Sitaram, AIR 1952 Nag 126 (FB).
3. I am unable to accede to the contentions advanced by the learned counsel for the appellant.
It is no doubt true that when an appellate Court passes a decree the decree of the trial Court is merged in it and the appellate decree, whether it confirms, varies or reverses that of the original Court, is the only decree which can be executed and technically a fresh application for execution should have been filed. But from this it does not necessarily follow that where the decree-holder has already applied for execution of the decree of the first Court, and if that decree is affirmed by the Court of appeal, then the decree-holder cannot amend his pending application for execution so as to make it one for execution of the decree of the appellate Court Or that if he makes an amendment in such a case it must be within three years of the date of the appellate decree.
Under Order 41 Rule 5 C. P. C., the filing of anappeal does not automatically operate as a stay of execution proceedings of the decree appealed from and it is not until the appellate Court orders a stay of execution of that decree that execution canbe stayed. Where, therefore, an application for execution of the decree of the original Court has been filed and the execution has been stayed by the appellate Court on an appeal being filed and if that appeal is dismissed affirming the decree of the original Court, then the obstruction caused by the stay-order is removed and the pending execution application becomes one in effect for the execution of the decree of the appellate Court.
Any other conclusion can only be on the supposition that the filing of an appeal operates as a stay of execution proceeding of the decree under appeal and that an application for execution, of the original decree becomes infructuous the moment an appeal is filed. Such an assumption would he contrary to the express provisions of Order 41 Rule 5 C. P. C. If then, as I think, on the passing of a decree by the appellate Court affirming the decree of the original Court the pending application for execution becomes one in substance for execution of the appellate Court's decree, it would be the merest technicality to drive the decree-holder to a fresh application for execution and erroneous to say that by amending the application for execution so as to give particulars of the decree of the appellate Court the decree-holder was asking for any relief different from that claimed by him originally.
In such a case the execution of the decree of the first Court cannot be said to be something quite distinct from that of the decree of the appellate Court. In my opinion, in such a case the amendment of the application for execution by substitution of the appellate decree for the original decree would be merely a technical and formal amendment filing within the scope of Order 21 Rule 17 C. P. C. Such amendments being formal and technical and not of substance could be made at any time and would not be barred even if they are made three years after the date of the decree.
As under Order 21 Rule 11(3) C.PC. a copy of the decree is not ordinarily necessary for execution, it cannot be argued that a copy of the decree of the appellate Court should have been filed in the pending execution proceedings within three years of its daie. In my judgment, the Courts below were right in permitting the decree-holder to amend the petition after passing of the appellate Court's decree and treating the amended petition for execution as one within time for the execution of the Appellate Court's decree.
4. I am fortified in the view I have taken by the decision of the Oudh Chief Court in Saroop Narain v. Suraj Mohan, AIR 1942 Oudh 84. In that case also, during the pendency of the execution of the decree of the trial Court an appeal was filed by the judgment-debtor and the execution was stayed under Order 41 Rule 5 by the appellate Court. On the dismissal of the appeal, the stay-order was discharged and the decree-holder applied to the executing Court to resume the execution proceedings.
It was held that a fresh application for execution was not necessary and that though in such a case technically the decree of the trial Court merged in the decree of the appellate Court it did not necessarily follow that the trial Court's decree after having been put into operation ceased to be executable on the passing of the appellate decree and that it could not be said that where a decree of the trial Court was affirmed by the appellate Court its result was to wipe out the decree of the trial Court for all purposes.
The decision in AIR 1930 Bom 225 relied on by the learned counsel for the appellant also supports the view I have taken. In that case it was observed that where once an appellate decree is passed and that decree is the only decree capable of execution, then technically a fresh application for execution is necessary. But it was further held that where during the pendency of execution proceedings of the decree of the original Court an appeal is preferred by the other party and the execution proceedings kept pending and later on an appellate decree is passed, an application simply for levival of the execution proceedings by the party executing the decree though bad in form is merely a curable error of procedure.
5. The other decisions cited by the learned counsel for the appellant do not seem to me to be in point. In AIR 1948 Nag 189, it was said that fundamental amendments should not be allowed when the matter is beyond time and that no application for amendment of an application for execution which is defective in material particulars can succeed if made more than three years from the date on which the original application was disposed of, or more than twelve years from the date of the decree; and that an application cannot be regarded as an application in revival of a previous application if any relief different from that originally claimed is asked for.
.Here there is no question of the decree-holder asking any relief different from that claimed by him originally in the application for execution dated 9-10-1948 and as I have endeavoured to point out the amendments made with regard to the particulars of the decree of the appellate Court are merelytechnical amendments and not fundamental. Thedecision in AIR 1952 Nag 126 (FB) in which it was held that the later application for attachment and sale of fresh properties was a fresh application and not a continuation of the old execution is also, for the reason immediately stated above, not relevant here. The case of AIR i939 Nag 107, is relevant only in so far as it holds that a stay-order passed by the appellate Court is automatically vacated the moment the appeal is dismissed. This proposition is not disputed.
6. The learned District Judge no doubt held in this case that the execution proceedings of the decree of the Madhya Bharat High Court could be commenced within three years of 25-4-1955 when the review petition was rejected. In this view, he was clearly wrong. As pointed out by the Supreme Court in AIR 1950 SC 6, before a case can be brought under Article 182(3) of the Limitation Act it roust be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In this case there was no review of the judgment passed by the Madhya Bharat High Court in the second appeal preferred by the appellant. The review petition filed by him was rejected after notice to the opposite party. The review petition was not accepted and the Madhya Bharat High Court did not undertake to review the relevant decree and there was no decision on the review. The learned District Judge was, however, right holding that the pending application for execution could be treated after amendment as a valid application for execution of the decree of the High Court.
7. For the foregoing reasons, this appeal mustbe and is dismissed with costs.