PHILLIP Vs. FR ZACHARIA

JUDGEMENT

(1.) When this execution petition came up for consideration today, the learned Sr. Counsel appearing for the respondents raised a preliminary objection regarding the maintainability of this E.P. He had three objections regarding the maintainability. They are the following:

(2.) The learned counsel appearing for the petitioners made the following reply to the preliminary objection:

(3.) I am afraid that I cannot agree with the above submissions made on behalf of the petitioner. It is admitted that the suit OS No. 1/1979 was disposed of by a learned Single Judge of this Court on 06/06/1980. The appeal from the said decree was preferred as AS 359/1980 before a Division Bench of this Court and it was the Division Bench which disposed of the appeal as per judgment and decree dated 01/06/1990. The matter was taken up further in appeal before the Supreme Court as Civil Appeal No. 4597 of 1995. As per the final judgment and decree dated 20/06/1995 reported in AIR 1995 SC 2001 , the Supreme Court confirmed the decree subject to certain modifications after hearing both sides, Paragraph 150 of AIR 1995 SC 20011 makes this position very clear. When a decree is appealed from and the superior Court either affirms or modifies or reverses the decree passed by the lower Court it results in a merger of the lower Courts' decree with that of the Superior Court and the decree which would thereafter be executable would be the decree of the superior Court. (Vide -- Chandi Prasad and Others v. Jagdish Prasad and Others, 2004 KHC 1184 : 2004 (8) SCC 724 : 2004 (3) KLT 654 and Gurswarup Joshi v. Beena Sharma and Others, 2006 KHC 728 : 2006 (5) SCC 119 : AIR 2006 SC 1999 : JT 2006 (5) SC 223. Whether the appeal was preferred by the petitioners or by the respondents, the legal consequence is the same. The decree of the Appellate Court namely that of the Division Bench of this Court having merged with the decree of the Supreme Court, the decree which is executable is that of the Supreme Court.