ZAHIRUDDIN Vs. ABDUL SATTAR

JUDGEMENT

(1.) The petitioner seeks a revision of the Older made by the first appellate Court made in A.S No. 38/81 over-ruling the objections raised by the judgment-debtor and ordering for necessary further steps to be taken for execution of the decree and delivery of the property in pursuance thereof.

(2.) The relevant facts in proof are that the respondent herein filed O.S. No. 65/66 for a declaration that he is the Muthavalli of Darga and has the right to manage the said properties and also for the delivery of the possession of the properties mentioned therein. The suit was, however, dismissed. Aggrieved by ihe same the re pendent preferred an appeal A.S. No. 228/1969 on the file of this Court, which was allowed on 22-2-1971 declaring the plaintiff, who is the respondent herein, as the Mutbavalli of the Darga and has a right to manage the wakf properties. Aggrieved by that the petitioner herein filed L.P. Appeal No. 98/71 which was, however, dismissed by a Division Bench of this Court on 9-7-1971. Subsequent to the dismissal, the respondent-decree holder filed C.M.P. No. 10167/72 for the amendment of the decree before a single Judge who had allowed the appeal on 22-2-1971 and the same was allowed on 24-4-1973 directing the defendant to deliver possession to the plaintiff of the properties set out in the schedule annexed to the C.M.P. No. 3226/1971. When E.P. No, 7/78 was filed in the said O.S. No. 65/66, objection was raised stating that it was not competent for the single Judge who had allowed the appeal to amend the decree as it was only competent for the L.P. Appeal Court wherein later the judgment passed by ths single Judge is deemed to have been merged in the L P. Appeal Judgment and, therefore, it is competent for that Court only to amend the decree, and consequenty the E.P.has to be dismissed, the decree being a nullity. However, the executing Court over-ruled the objection Consequently the Appeal Suit No 38/1981 was preferred to the lower appellate Court, which likewise over-ruled the objection raised on behalf of the judgment-debtor and dismissed the appeal. Hence this revision.

(3.) The karned counsel Shri Parvaihisam, for the petitioner contends that it was not competent for the first appellate Court to amend the judgment and decree in as much as that judgment and decree will be deemed to have been merged in the judgment passed in L.P. appeal and it will be onl,y competent for that L.P. appellate Court to amend the judgment ard decree if any, and therefore, the ameaded decree is not valid and, therefore, since the first appellate Court hid no jurisdiction to amend the decree, the decree is a void one and the same is not executable.