MEENAKSHI AMMA Vs. RAMA KURUP

JUDGEMENT

(1.) THE short question in this appeal against second appeal is whether the view expressed by a Single judge of this Court in Bhargavan v. Halima Bivi (1964 KLT. 532) is the more correct view than the view expressed by a Division Bench of the Travancore-Cochin High Court in Padmanabhan Nadar velayudhan Nadar v. Narayanan Nadar Raman Nadar (1949 KLT. 191 ). We do not think it necessary to state the facts of the same before us. We rest content by stating the proposition of law that has to be considered. THE proposition is whither an execution petition pending at the time of the reversal, variation or confirmation of the decree sought to be executed by an appellate court will automatically put an end to the execution petition.

(2.) IN the decision of this Court, the learned judge has referred to the relevant decisions of the Supreme Court which have held that, when a decree is confirmed, varied or reversed in appeal, the original decree gets merged in the appellate decree and it is the appellate decree that subsists and is operative and capable of enforcement. Therefore, whether there is a confirmation, variation or reversal of a decree of a lower court by an appellate court, the executable decree thereafter is certainly the appellate decree - the affirmed decree, the varied decree or the reversed decree. But, that by itself does not put at end to the execution petition which has already been filed seeking to execute the decree of the original court. As pointed out by the learned Single Judge, on the passing of the appellate decree, the pending execution petition becomes defective, but the defect can be set right and the same execution petition can be continued: in other words, the passing of the appellate decree cannot have any other effect on the pending execution petition - cannot have the effect of putting an end to it. IN this view, we agree with the decision of the Single Judge of our Court and disagree with the decision of the Division Bench of the Travancore-Cochin High Court, since, in our opinion, the former is the more correct view. The appeal is dismissed with costs. . .