P L D 1988 Peshawar 71 (PLP)

2. The question that falls for determination in this Court is whether Sultan Muhammad Salahuddin can get advantage out of the decree passed in favour of Mst. Nargis Khan etc. by the High Court despite the fact that Sultan Muhammad Salahuddin felt contented with the findings of the learned District Judge. To resolve the problem first of all it may be observed that before the learned District Judge the matter for adjudication was with respect to 942 kanals and 17 marlas of land which includes 282 kanals and 15 marlas of land belonging to Sultan Muhammad Salahuddin etc. appellants. Para. 14 of the judgment dated 4‑1‑1972; of the High Court is reproduced for the proper appreciation of the point involved which runs thus:‑ "The upshot of the whole discussion is, that we accept Regular First Appeal No.15 of 1966, while Regular First Appeals Nos.l6 and 17 of 1966 are dismissed, and as regards Regular First Appeal No.14 of 1966, it is accepted partially. The order that we should make is, that the objectors be paid at the rate of Rs.200 per kanal, as respects the land acquired for the Agricultural Farm, and Rs.300 per kanal as respects the land acquired for the Sugar Mills, In addition to this, they shall be paid 15 per cent in consideration of the compulsory nature of acquisition in each case. They are further allowed compound interest at the rate of 8 per. cent per annum over the excess amount from the date on which possession of the land was taken upto the date of payment of such excess amount into Court. The costs of the objectors in the proceedings under Section 18 of the Land Acquisition Act shall be paid by the Government in each case." From the perusal of the above conclusion of the Honourable Judges of the High Court it is crystal clear that instead of the word "appellant" the word "objectors" has been used and in para. 2 of the judgment referred to above the matter for consideration was with respect to the entire land acquired‑ for the Agricultural Farm as also for the Sugar Mills, which included area of 282 kanals and 15 marlas belonging to Sultan Muhammad Salahuddin etc. I fully agree with the contention of the learned counsel for the respondents that according to well‑settled principle of law the executing Court cannot go behind the decree but for determination is as to which of the decree is to be Under Rule 33 of Order 41, C.P. C. the appellate Court has the powers to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Keeping in view the provision of Rule 33 ibid coupled with the conclusion of the honourable Judge, of the High Court reproduced above it can easily be resolved that the decree of the learned District Judge has beer modified to the extent detailed above in respect of all the objectors and this is no more in controversy that Sultan Muhammad Salahuddin appellant is also one of the objectors. In a Full Bench judgment reported as Saeed Ahmed petitioner v. Messrs Indo Enamel Works Ltd: Lahore (in Lahore) respondents (P L D 1954 Lahore at page 502) the observations of Bhashyam Ayyanger‑J reported in I.L.R. 26 Mad. 91 have been reproduced which runs thus:‑ "When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of Appeal and reheard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that a matter is litigated both in the Court of first instance and again, though only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal. There cannot be two final decrees in such a suit, one by the Court of first instance and the other by the Court of Appeal. Section 577, C.P.C., therefore, provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against, and the confirmation is not limited the portion appealed against. If such appeal be allowed, the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed as to the rest, i.e. the portion not appealed against. The portion appealed against and litigated in the Court of Appeal is varied or confirmed according as the objection taken, in the Court of Appeal, to such part of the decree prevails or fails. The rest of the decree is confirmed because no objection is raised thereto by the party concerned and it is not the function of a Court of Appeal, as distinguished from a Court of Revision, to give relief to any party who has not applied to it in the form and, within the time prescribed for appeal. When an appeal is preferred, the Court of Appeal is really seized of the whole suit though the relief given by it will be limited to the portion of the decree appealed against or objected to under Section 561, C.P.C.," Agreeing with the observation of Bhashyam Ayyanger, J. honourable Mr. Justice Kaikaus, J. at page 503 of the authority quoted above remarked that:‑ "With respect to the last portion of these observations, I may explain that since the enactment of rule 33 of Order 41, C.P.C., it is not correct to say that the relief given by it (appellate Court) will be limited to a portion of the decree appealed against, nor can it be said that 'it is not the function of a Court of Appeal as distinguished from a Court of Revision to give relief to any party who has not applied to it in the form and within the time prescribed for appeal'." In yet another authority reported as F.A Khan v. the Government of Pakistan (P L D 1964 S C 520 at page 529), it has been observed that: "In respect of the nature of an appeal the following propositions may be regarded as established: (i) When an appeal is filed the matter becomes sub judice and is reheard by the Appellate Court which does not act merely as a Court of error; (ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (iii) the original and appellate proceedings are steps in none proceedings." From the above discussion it can very easily be inferred that the decree of the Court of first instance merges into the appellate decree which alone is capable of execution and that presently the decree of the Court which requires execution is the one granted by the High Court and subsequently affirmed by the Supreme Court of Pakistan and despite the fact that Sultan Muhammad Salahuddin did not challenge the decree of the District Judge in the High Court, the High Court has granted relief to all the objectors including Sultan Muhammad Salahuddin by implication and thus the decree executable in favour of Sultan Muhammad Salahuddin is also that of the honourable. High Court.

4. Accordingly I accept this First Appeal and set aside the order dated 2‑6‑1986 of the learned executing Court and allow the appellant to file amended execution application in accordance with the terms of the decree passed by the High Court referred to above and remand the case to the Executing Court for proceeding with the execution in the light of the above observations. The amended execution petition must be filed within 30 days from today. No order as to costs. A.A. /613/P Case remanded.