FIRM OF FAKIRBHAI KARSANJI Vs. GULABBHAI KHANDUBHAI DESAI

JUDGEMENT

(1.) This is an appeal by the original defendants Nos. 1, 2, 5 and 4. A money decree had been passed against a, joint family formed of the defendants for about fifty thousand rupees, and certain properties were attached in execution of the decree. The attachment and sale of those properties are now challenged in this appeal on the following four grounds:

(2.) Regarding the first contention that a decree of the trial Court is not executable, this point has no substance, because the appellate Court admittedly confirmed the decree of the lower Court. It the appellate Court does not vary or set aside the decree of the lower Court and merely confirms it, the decree of the lower Court stands and is not destroyed or varied, although the decree of the trial Court merges with the decree of the appellate Court. That point* is not important when the decree of the trial Court is confirmed and when the execution application is in time, whether we take the application as one to execute the appellate Court's decree or the trial Court's decree. It is true that in the execution application, there is no reference to the fact that the decree of the trial Court is confirmed by the appellate Court. But the fact that the decree of the trial Court is confirmed by the appellate Court is conceded by the learned counsel for the appellants. We can, therefore, treat the execution application as an aplication for executing the appellate Court's decree. There is, therefore, no merit in this point.

(3.) Regarding the second point, no doubt as held by me and as held by various High Courts, there cannot be an amendment application to add more property to be sold or attached. That should be done by an independent execution application. But in this case, again, this point has no substance, because on the date of the amendment application, a new application for execution would not have been barred by time. We can therefore treat the amendment application as an independent application, which would require extra court-fees to be paid. The decree-holder should therefore pay extra court-fees.