P L D 1968 Karachi 19 (PLP)

"After the commencement of this Act, no tenant, whether before or after the termination of his tenancy, shall be evicted from the building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section." The procedure prescribed in the subsequent subsection of section 17 is more or less the same as that contained in section 13 of the West Pakistan Urban Rent Restriction Ordi nance, 1959.

4. The executing Court has come to the conclusion that .‑

the only decree capable of execution, and in fact tile only final decree made in this case, is the decree made., by the High Court in Revision, into which the decree of the, Court of first instance must be taken in law to have merged because a decree cannot be, considered to have become final when proceedings for appeal or revision are taken by the parties. In the instant case the last order passed in revision is dated 31‑1‑1964 which order apparently has been passed after coming into force of the Cantonments Rent Restriction Act, 1963, and as such the plaintiff‑decree holder cannot eject the defendant judgment‑debtor except in accordance with the provisions of the aforesaid (Cantonments Rent Restriction) Act."

5. Counsel for the applicant has relied on the observa tions of the Supreme Court made at page 99 in the last Paragraph in Joydeb v. Baidulmal Karkhana Ltd. (P L D 1965' S C 37). The facts of that case were that a suit was bought for specific performance of a contract of a sale, which was decreed and an appeal preferred against it to the High Court was dis missed. No appeal was made against that decision to the. Supreme Court. Some of the land was compulsorily acquired 'by the Government ; therefore, an application was made for the amendment of the decree which was allowed by the Court of first instance. An appeal was preferred against that order" which was summarily rejected. Then leave to appeal to the Supreme Court was granted. It was contended before the Supreme Court that the trial Court had no jurisdiction to amend the decree because: "It had become final through being upheld in appeal in the High Court and not having been appealed against further, and secondly, that only the High Court could alter the decree which had become merged in the decree of the High Court."

6. The above contentions were repelled as follows:‑

"The mere fact of the decree having become immune to further appeal by the dismissal of the appeal in the High Court and the lack of further appeal does not render the decree a decree of any other Court except that of the first instance. No modification was made in the decree by the High Court, and the argument of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal."

7. Counsel for the respondent has contended that when an appeal is preferred against decree, then, irrespective of whether the appellate Court reverses it, modifies it or confirms it, it is the decree of the appellate Court which takes the place of the decree that was appealed against because the decree from which the appeal was made becomes merged into the decree of the appellate Court. In support of this proposition he has referred to Satindra Mohun Tagore v. Sarala Sundari (A I R 1918 Cal. 183), Harilal v: Mulchand (A I R 1930 Bom. 225) and Kedarnath Khetan v. Jainarain Ram (A I R 1954 Pat. 497). Additionally, counsel has referred to, the observations of the learned author, Soonavala in his treatise on the law of execution proceedings (1958 Ed.) at pages 127‑28 and

355. The relevant observations are as fellows :‑

"Where a decree is reversed or modified or affirmed on appeal, the only decree capable of execution is the final appellate decree. When the Appellate Court makes a decree the decree of the Court of first instance is merged in the decree of the highest Court of Appeal and it is the latter decree which is capable of execution." The above proposition is supported by, reference to a large number of precedents. Further: "Under section 48, C. P. C. the date of the appellate decree is the starting point of limitation. To hold otherwise would be to hold that the starting point for limitation under section 48 will not be the same as under clause 2 or clause 3 of Article 182, Limitation Act. A worse anomalous position cannot perhaps be thought of. The application of section 48 is not attracted to a case where there has been no previous application. (Govindan v. Damodaran A I R 1952 Trav‑Coch. 269 ; also see I L R 26 Mad. 91 ; A I R 1932 P C 165)." In the last quotation an exception is mentioned. That exception is applicable to this case.

8. I may also mention that learned counsel for the respondent conceded that there are other exceptions to the general rule also. Those exceptions come into play when an appeal is dismissed in limine ; or in default, or for having been insufficiently stamped, or because no appeal actually lay, or was withdrawn or had abated. These exceptions, counsel contended, related to the occasion when no decision was given on merits. It appears, however, that the case of dismissal of an appeal in limine is somewhat different because such dismissal takes place after taking the merits of an appeal into con sideration. A question sometimes arises as to what happens when a date is fixed by the trial Court for payment of money and an appeal is preferred from that decree. Soonavala has considered this aspect and has left it open by pointing out that, according to some judicial pronouncements, time for pay ment of money begins to run from the date of the decree of the Court of the first instance irrespective of the fact that an appeal is filed against that decree ; while according to other authorities it begins to run from the date of the decree‑ of the highest Court in appeal. The discussion is at page 130 of his book.

9. In the present case, the opinion of the Supreme Court is final and binding. I may add that the words of subsection (1) of section 17 are: " . . no tenant . . . . shall be evicted . . . . in execu tion of a decree passed after commencement (of this Act)." The word "passed" is of particular importance in this case, because even if the proposition that the decree of the trial Court becomes merged in that of the highest Court, is taken without any exception to it, it would perhaps still be correct to say that it was passed on the date when the trial Court made it. The date of merger of the decree of the trial Court in that of the highest Court is not the date on which the decree was passed, unless it can be said that the decree of the trial Court ceased to have any existence at all. But it is difficult to push the argument to that extreme point because there is a number of exceptions which cannot be disregarded.

10. In the above view of the matter I accept this revision application and set aside the order of the First Civil Judge First Class Karachi, dated the 2nd of April 1964. The execution application is thus to be proceeded with. In view of the difficulty of the problem, the parties are left to bear their own costs. A. H Petition accepted.