P L D 1967 Dacca 148 (PLP)

ABDULLA, J.‑This appeal arises out of a proceeding under section 47, Code of Civil Procedure. The appellants before us are the defendants judgment‑debtors. The decree holders opposite- parties obtained a decree for khan possession of Schedules 1 and 2 lands in Title Suit No. 114 of 1952 on 28‑3‑

53. Thereafter the judgment‑debtors filed a First Appeal being Title Appeal No. 100 of 1953 in which the decree passed by the trial Court was affirmed on 31‑8‑

56. The decree‑holders thereafter brought Title Execution Case No. 34 of 1956. The judgment‑debtors, however, obtained a stay order from the Appellate Court till the disposal of the Second Appeal preferred by them in the High Court. The said Second Appeal (S. A. No. 543 of 1957) was dismissed for default. The decree‑holders thereupon had the order of stay passed by the appellate Court vacated and proceeded with the Execution Case and took delivery of both Schedules of lands on 15‑10‑58 by demolishing and removing the structures on the suit properties with the help of the Court's Officers aided by the Police. In the meantime on the application of the judgment debtors the Second Appeal was restored on 27‑8‑58 and the same was disposed of on 20‑6‑

60. The High Court confirmed the decree of the Courts below so far as the Schedule 1 properties are concerned but reversed the decree with regard to the Second Schedule lands. The decree‑holders thereafter filed the present Execution case for execution of the decree. The judgment debtors resisted the 2nd application by filing an application under section 47, Code of Civil Procedure. It was argued by the decree‑holders before the learned Sub ordinate Judge that the delivery of possession taken by them on 15‑10‑58 was a nullity as there was a stay order till the disposal of the Second Appeal filed by the Judgment‑debtors. The learned Subordinate Judge repelled this argument (and in our opinion correctly) by holding that the decree‑holders themselves had the stay order vacated and there was no bar to the execution of the decree. The next argument advanced on behalf of the decree‑holders was that the decree‑holders were not executing the original decree but a new decree passed by the High Court in modification of the original decree. The learned Subordinate Judge held that the decree‑holders were executing the original decree as evidenced by their application. The High Court had in fact affirmed the original decree with regard to the Schedule 1 land and reversed the decree with regard to Schedule 2 lands for which the judgment debtors were entitled to an application for restoration under section 144, Code of Civil Procedure. The learned Subordinate Judge, therefore, allowed the Miscellaneous Case and held that the Title Execution Case (No. 67 of 1960) be struck off as untenable. The decree‑holders preferred an appeal. The learned Additional District Judge who heard the appeal came to a finding that although the decree‑holders once took delivery of possession they did not get any actual possession or they were again dis possessed. In his opinion, in either event these things took place during the pendency of the litigation and were matters not yet finally decided, and purporting to follow some reported decisions held that 'in the event of any disturbance of possession of the decree‑holders before disposal of the Second Appeal the decree‑holder after the final decision by the appellate Court was entitled to get relief in terms of the confirmed decree. The learned Additional District Judge, therefore, allowed the appeal and ordered that the Title Execution Case be revived and the execution do proceed for delivery of possession of the suit land for which the decree in favour of the decree holders was confirmed by the High Court. The judgment‑debtors have appealed against the said order. It was argued before us that the decree‑holders having taken actual physical possession of the decretal land on 15‑10‑58 (which is evidenced by the writ and its return and which we accept) a 2nd Execution Case was not maintainable as after taking delivery of possession by executing a valid decree nothing remain to be executed. Mr. Ruhul Islam appearing on behalf of the decree‑holders argued that there was no bar in any provision of law to the starting of a second Execution case and be has drawn our atten tion to some reported cases in support of his contention, namely, Narayanan Chetty alias Ranganathan Chetty and others v. Elayaperumal alias Lakshman Chetty and others (A I R 1924 Mad. 400). Shah Tajammul Ali and another v. Mussod Ali and others (5 I C 776) and Ghanashvam Das Mour Agarwalla v. Fatik Chandra Das (A I R 1957 Assam 123). In the two Madras cases the original decree was restored in second Appeal and it appears that the judgment‑debtors had taken possession after the reversal of the original decree by the first Appellate Court. There fore a fresh application was held maintainable. In the Assam case only partial possession was obtained, as such, the facts were different. But in the course of their judgment the learned Judges made a general statement to the effect that the decree‑holder was entitled to a fresh execution of the decree as passed by the appellate Court. We will deal with this observation presently. Mr. Islam has cited the case of Sudhindra Chandra Singha Sarma and others v. Ajit Kumar Singha Sarma and others (32 I C 44 Dacca 803) to support his contention that the decree of the trial Court merges into that of the final appellate Court. We do not see that there can be any objection with this proposition of law. It is true that the decree of the trial Court merges into that of the final appellate Court. But to say that any execution of the original decree in the meantime will be rendered nugatory by the said merger is note correct. The provisions of Order XLI clearly stipulate that the filing of an appeal does not bar the execution of the decree from which the appeal has been preferred. The wordings of rule 5 of Order XLI clearly indicate that execution of the decree appealed from shall proceed unless for sufficient cause a stay order is made. In this connection the provision of section 144, Civil Procedure Code are also relevant. It clearly provides for restitution to a position, which the parties would have occupied "but for such decree or such part thereof as has been varied or reversed". The provision for restitution and the provision regarding stay of the execution of decree by the appellate Court clearly indicates that the normal is the execution of the decrees pending an appeal and the stay of such execution is the exception. So far as the `lis' is‑concerned it is that given in the plaint. The decree can relate only to that 'lis'. The High Court or any Court of appeal cannot give any decree with regard to a dispute which was not in issue between the parties before the trial court. The subsequent dispossession after possession was obtained in execution of the original decree gives rise to a separate cause of action which can be the subject‑matter of a separate suit. We fail to understand how the fresh dispossession can be adjudicated upon by the appellate Court. Therefore, we hold that in a case where the decree‑holders have obtained possession of the decreed property by executing the decree and have subsequently been dispossessed pending an appeal against the original decree, the remedy of the decree‑holders whose decree is affirmed by the appellate Court is not by way of a fresh execution proceeding with regard to the original decree as confirmed by the appellate Court but by way of a suit the cause of action of which would be the fresh dispossession. A similar view was held by one of us in the case of Abdul Latif v. Surabala Chowdhurani, in Appeal from Appellate Order No. 62 of 1961, which decision was based on the case of Maharaja Jagadish Nath Roy Bahadur v. Nafar Chandra Pramanik and others (35 C W N 12) and the case of Thadavaroya Mudalli v. Subramania Gurukkal (32 I C 44) and the case of Tukaram Bajirao v. Tukaram Yeshwant (A I R 1927 Nag. 37). In the result, the appeal is allowed, the judgment and order of the Lower appellate Court are set aside and those of the trial Court are restored. In the circumstances, we make no order as to costs. HASAN, J.‑‑I agree. S. Q. Appeal allowed.