KRISHNA GOPAL CHAWLA AND ORS. versus STATE OF U.P. AND ANR.

Citation: [2001] SUPP. 4 S.C.R. 62 · Decided: 11-10-2001 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
KRISHNA GOPAL CHAWLA AND ORS. 
v. 
STATE OF U.P .. AND ANR: 
OCTOBER 11, 2001 
j. 't 
B 
[D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.] 
Code of Civil procedure, 1908 : Order XXJ Rules JO and 11(2)(d). 
Execution-Application for-Maintainability of-Merging of decree in 
C 
appellate court-Fresh application-Necessity of-Eviction suit decreed in 
second appeal-Decree holder moved execution application-However, on 
appeal Supreme Court stayed execution proceedings-Ultimately appeal 
dismissed without any modification or alteration of decree-Decree-holder 
continued execution proceedings-But High Court held that the execution 
D 
application was not maintainable as the decree merged in the decree passed 
by Supreme Court and that a fresh application for execution had to be flled-
Correctness of~Held : In a pending execution case an amendment can be 
sought, if needed, under R.11(2)(d) after dismissal of appeal-There is no need 
to file afresh application for execution after a decree is passed by the appellate 
E 
court more so when the decree is neither modified nor altered-The pending 
execution proceedings can be continued-Hence, High Court's order setaside. 
The appellants fded a suit for eviction of the respondents from the 
suit property. The suit was decreed by the High Court in second appeal. 
Thereafter, the appellants filed an execution application under Order XXI 
p 
Rule 10 of the Code of Civil Procedure, 1908. In the meanwhile, the 
respondents filed an appeal before this Court and this Court stayed the 
execution proceedings pending in the executing court. Ultimately, the 
~ppeal was dismissed by this Court without any alteration or modification 
of the decree passed by the High Court. 
G 
The appellants, after dismissal of the appeal by this Court, continued 
the execution proceedings. The respondents filed various objections before 
the executing court including the objection with regard to the ownership 
of the suit property. The executing court allowed the application 
for execution. The civil revision petition filed by the respondents was 
H 
dismissed. 
62 
.. 
.. 
.... 
K.G. CHAWLA v. STATE 
63 
Thereafter, the respondents filed a writ petition before the High 
A 
Court which was allowed on the ground that the decree passed by the High 
Court, in second appeal, was not capable of execution since it merged, in 
the decree passed by this Court and that the appellants were required to 
file a fresh application for execution. Hence this appeal. 
Allowing the appeal, the Court 
HELD : 1.1. After the disposal of the appeal by this Court, there 
was no impediment or bar to continue the execu_tion proceedings on tJie 
application moved by the appellants to proceed with the execution. The 
B 
High Court erred in holding that a fresh execution petition should be filed 
C 
after the dismissal of the appeal by this Court as the decree passed by the 
High Court had merged with the decree of this Court and the execution 
petition filed earlier which was pending was not maintainable. [69-A; E] 
1.2. This Court, in appeal, only confirmed the decree passed by t.fie 
High Court without any alteration or modification. Even otherwise, in a 
D 
pending execution case, amendment could be sought, if it was needed, after 
dismissal of ~he appeal by this Court. Under Order XXi Rule 11(2)(d) of 
the Code of Civil Procedure, 1908, in the execution application the 
particular as to whether any appeal has been preferred from the decree 
is to be mentioned. If an appeal has been preferred from a decree and 
E 
after disposal of the appeal, necessary information can be given by fili~g 
an application, if need be seeking an amendment. It is one thing to say 
·that the earlier decree passed gets merged in the decree passed by the 
appellate court, yet it is a different thing to say that an execution petiti~n 
filed earlier is not maintainable and that there is a need to file a fresh 
application for execution after a decree is passed by the appellate court, 
particularly in the present case, when this Court had stayed the execution 
proceedings filed earlier. It was obvious that the execution proceedings 
could be continued after dismissal of the appeal by this Court affirming 
the decree passed by this Court without any alteration. [69-F-H; 70-A] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7104 of 2001. 
~rom tlJe Judgment and Order dated 17.11.98 of the Allahabad High 
Court m C.M.W.P. No. 34383 of 1997. 
F 
G 
Gopal Subramanium

Excerpt shown. Read the full judgment & AI analysis in Lexace.