JUDGMENT
Mallick, J.
1. This appeal arises out of a petition for execution of a decree obtained by some of the plaintiffs in a suit for specific performance. The facts leading to the present appeal may be stated as
follows:
2. By an agreement for sale dated 19-12-1936, the defendants, who for convenience may be referred to as the Mandals, as vendors agreed to sell and convey to Sachindra Nath Goswami as purchaser of the land and premises referred to in the said agreement. On 5-6-1939, a suit for specific performance of the said agreement was instituted in the Court of 3rd Subordinate Judge of 24th Parganas against the said Mandate. The plaintiffs in the said suit are 5 Dagas and the said Sachindra Nath Goswami. It is pleaded in the plaint that Goswami entered into the said agreement with the Mandals for and on behalf of the Dagas as their agent and benamidar so that the real beneficiaries under the agreement
are the Dagas and not Goswami. Needless to say that plaint bears the signature of all the Dagas and Goswami.
The suit was contested taut ultimately a decree was passed on 29-1-1945 in favour of the plaintiffs. One of the Mandals being defendant No. 1 settled the suit with the plaintiffs and a compromise petition was put in. The operative part of the decree in so far as it is material runs as follows:
“It is ordered that the suit is decreed on compromise against the defendant No. 1 in terms of petition of compromise filed and on contest against defendant Nos. 2 and 3 in part with 2/3rd costs on contested scale. The defendant Nos. 2 and 3 do execute a Deed of Sale in respect of properties in suit in terms of the agreement on receipt of the balance of the consideration due for their share of 2/3rd and also register the sale deed at the cost of the plaintiffs within one month hereafter”.
3. The decree was put to execution by the
Dagas by filing the tabular statement on 18-7-1945. In column 2 of the tabular statement, where the names of the plaintiffs are to appear, the Dagas described Sachindra Nath Goswami as the ”pro forma judgment-debtor” and in column 11 of the tabular statement it was prayed “that the judgment-debtor Nos. 2 and 3 be directed to execute and register the sale deed as per draft filed herewith.” In the draft filed the purchasers named are the Dagas and not Sachindra Nath Goswami.
4. Against the decree passed by the learned Subordinate Judge an appeal was taken to this Hon’ble Court on 16-5-1945, being First Appeal No. 152 of 1945. By an order of this Court in the said
appeal the execution of the decree was stayed. On 27-11-1950, the appeal was dismissed and the order for stay was vacated. Thereupon the Dagas took steps in execution already filed by them on 16-7-1945 as hereinbefore stated. Against the said application for execution a petition of objection was filed by Amulya Charan Mandal, one of the judgment-debtors on 18-4-1951 under Section 47, Civil P. C. This objection was numbered as Misc. Case No. 11 of 1951.
Various grounds were taken in the said petition of objection of which two were pressed before the executing court, namely, (1) that a certain phrase in the draft conveyance should be clearly specified and (2) that the agreement for sale having been in favour of Sachindra Nath Goswami, the Dagas are not entitled to a conveyance, in the absence of any nomination by Goswami. The executing court accepted the first objection and directed the phrase to be clearly stated bringing it on the lines with the agreement for sale. The second objection was overruled on the ground that the judgment of the High Court in the said F. A. No. 152 of 1945, D/- 27-11-1950 (Cal) (A) clearly indicated that the Dagas were the real benefi-ciaiies under the agreement and Sachindra Nath Goswami was their agent or benamdar. Against this order the present appeal has been, taken.
5. Mr. Nirmal Chandra Chakraborty who appeared in support of the appeal contends that the decree directs the defendants to execute a deed of sale in terms of a deed of agreement. Under the said agreement the defendants are bound to execute a conveyance in favour of Sachindra Nath Goswami or his nominee. There being no nomination by Goswami the conveyance must be in favour of Goswami and nobody else. The conveyance filed however named the Dagas as the purchasers. This is not in terms of the decree and the learned Subordinate Judge should have dismissed the application on this ground. He contends that the decree by itself is clear and unambiguous in that the purchaser would be Sachindra Nath Goswami in whose favour alone the conveyance could be executed. Inasmuch as the conveyance claimed in the execution case is in favour of the Dagas the court should have dismissed the application.
He further contends that if in the judgment the Dagas are held to be the real purchasers and are entitled to a conveyance there is a contradiction between the Judgment and the decree, and the executing court should give effect to the decree and not to the judgment. He relies on the decision reported in — ‘Shoshi Kanta Acharji v. Raja Sarat Chandra‘, 35 Cal LJ 339 (B), in support of his argument.
6. On looking to the decree, however, we are satisfied that the decree is not clear. The decree purports to be in favour of all the plaintiffs, that is, the Dagas and Goswami in whose favour a decree for specific performance has been passed. The decree, however, refers to the agreement in which the Dagas do not appear as purchasers. This is a case of clear ambiguity and hence to resolve the ambiguity the executing court is bound to look to the judgment and the pleadings. On referring to the pleadings we find that the suit was instituted on the footing that the Dagas are the real purchasers and Goswami their agent. Goswami himself has signed the plaint and clearly, therefore, accepts that position. The position, therefore, is that Goswami nominated Dagas as purchasers in whose favour the conveyance is to be executed.
This court in — ‘F. A. 152 of 1945 (Cal) (A), took the view in its judgment delivered on
27-11-1950 that the Dagas are the real purchasers and that Goswami entered into the agreement with the defendants for and on behalf of the Dagas as their agent. It is clear, therefore, that according to the judgment referred to, the Dagas are the purchasers and are entitled to a conveyance from the defendants. After this it is not open to the appellant to contend that the Dagas are not the real purchasers and are not entitled to a conveyance.
7. It is next contended that the decree is in favour of all the plaintiffs, viz., the Dagas and: Goswami. Dagas are not competent to execute the decree without Goswami, one of the joint decree-holders. In reply it is contended by Mr. Purshottam Chatterjee who appears for the respondents that under Order 21 Rule 15 some of the joint decree-holders are competent to execute the decree for the benefit of all. In this case Dagas have applied to execute the decree for their own benefit, it is true, but that is so because it has been held that they alone are beneficially entitled to the agreement, Goswami having been held to be mere agent or benamidar. The Court having discretion to allow execution of a joint decree at the instance of some of the decree-holders, it is urged, the Court should in the circumstances of this case, exercise its discretion in favour of the Dagas who alone have interest in the agreement.
This argument has considerable substance and must prevail. The case reported in 35 Cal. L.J. 339 (B), cited by Mr. Chakraborty is clearly distinguishable. In that case the judgment and decree could not be reconciled and the decree was unambiguous and hence it was held that the Court should execute the decree and ignore the judgment. But here the decree is ambiguous and by referring to the judgment, the ambiguity can be resolved. Hence principles laid down in — ’35 Cal LJ 339 (B)’, have no application to the facts of this case. We hold, therefore, that the present petition for execution of the decree by the Dagas alone is competent and is maintainable in law.
8. The second point urged by Mr. Chakraborty is that after the dismissal of the — ‘F. A. No. 152 of 1945 (Cal) (A)’, the decree of the Trial Court which has been put to execution is merged in the decree of the appeal court and the only decree that is executable is the decree of the appeal court. There are authorities in support of the propositions that after appeal the decree of the trial court is merged in the decree of the appeal court and the only executable decree is the decree of the appeal court (see — ‘Jowad Hossain v. Gendan Singh‘, AIR 1926 PC 93 (C); ‘Gajadhar Singh v. Kishen Jiwan Lal‘, AIR 1917 All 163 (SB) (D); ‘Syam Mandal v. Satlnath Banerjee‘, AIR 1917 Cal 728 (E), and the cases referred to in the notes under section 38 of the Code of Civil Procedure by Sir Dinshaw Mulla.)
An examination of the authorities, however, shows that the court has applied the theory of merger in two classes of cases only, viz., for the purpose of determining the point of time when limitation would run and for the purpose of amending the decrees. It has been held that limitation would run from the date as provided in the
decree of the appeal court and not that of the trial court and appeal court alone is competent to amend the decree even if the appeal court decree is a decree of dismissal of the appeal and confir-mation of the decree of the trial court. The court has never applied the doctrine of merger for the purpose of defeating an execution petition of the decree of the trial court when the appeal has been dismissed and the decree of the trial court con-firmed.
Although it is true that technically the decree of the trial court merges in the decree of the appeal court, it cannot be said that even when the decree of the trial court is affirmed in appeal, the decree of the trial court is wiped out for all purposes. To apply the doctrine of merger in such cases would lead to palpably absurd and inequitable result. The decree-holder would be put to the inconvenience of filing a fresh petition for execution of the decree of the appeal court which is nothing but the same decree of the trial court and pursue the execution proceedings ‘de novo’. There could conceivably be no point in such senseless multiplicity of proceedings. Filing of the appeal does not operate as a stay of execution of the decree. On what principle can it be said that the dismissal of the appeal will operate as a dismissal of the pending execution case of the decree of the trial court, when the appeal court does nothing but dismiss the appeal and confirm the decree of the trial Court? I can find none.
No direct authority of this High Court on the point has been referred to us. But there are authorities of the other courts in support of the proposition that the fiction of merger should not be carried too far in cases like the present because it would lead to obvious injustice (see — ‘Ekram Hussain v. Mt. Umatul RasuP, AIR 1931 Pat 27 (F); ‘Saroop Narain v. Suraj Mohan’, AIR 1942 Oudh 84 (G); ‘Pateshwari Prasad Singh v. Abdul Karim‘ ).
Of these authorities the facts in the Oudh. case are on all fours with the facts in this case. In the Oudh case as in this case during the pendency of the execution of the decree of the trial court an appeal was filed by the judgment-debtor and execution of the decree was stayed. After the dismissal of the appeal the stay order was vacated. Thereupon the decree-holder applied to the executing court to resume the execution proceedings. The judgment-debtor objected that the decree of the trial court- was no longer executable and the only decree executable was the decree of the appeal court even though the decree of the appeal court was a decree affirming the decree of the trial court. The Court consisting of Ghulam Hasan and Agarwal JJ. overruled the objection and allowed the decree-holder to resume the execution pro-ceeSings of the decree of the trial court still pending. At p. 86 their Lordships observe:
“We do not think that in a case where the appellate decree merely affirms the decree of the trial Court, and does not affiect the terms of that decree in any way whatsoever, the fiction of merger should be carried so far as to lead to such a palpably absurd and inequitable result that the decree-holder should be put to the in-
convenience of filing a fresh application in the Court which originally passed the decree, getting a fresh transfer certificate to another Court and pursuing the proceedings for execution in that Court. We are not prepared to hold that
even where a decree of the trial Court has been
affirmed by the appellate Court, its result is to
wipe out the decree of the trial Court for all
purposes.”
With this observation we respectfully agree as
also with the reasonings given by Fazl Ali J. in
–‘AIR 1931 Pat 27 (F)’. Even if the revival of the pending execution proceeding after the dismissal of the appeal is considered to be bad it is only bad in form and is merely an error of procedure Which is curable under Section 99, Civil P. C. (see –‘Harilal Dalsukhram v. Mulchand‘, AIR 1930 Bom 225 (I)). We overrule the second point urged by Mr. Chakraborty in support of the appeal.
9. Mr. Purushottam Chatterjee appearing for
the respondent contended that the appellant
should not be permitted to raise the second point
on two grounds — first the point was not taken
in the petition of objection filed by the judgment-
debtor and second that by reason of the order
No. 5 dated 1-3-1951 directing execution to pro
ceed which has not been set aside the judgment-
debtor is debarred from agitating the question on
principles of ‘res judicata’.
10. As regards the first point it is true that apart from taking the general ground that the decree is not executable, the point has not been taken in the objection petition. We find, however, from the paper book, and it is the common case, that the appeal has been dismissed, the certified copy of which was filed in the executing court (see order dated 28-2-1951). Thus, the facts being admitted the question becomes a pure question of law which can certainly be taken for the first time in appeal. The first point of Mr. Purushottam Chatterjee therefore fails. In view of our decision on merit in favour of Mr. Purushottam Chatterjee’s
client, we need not decide the question of ‘res judicata’ raised by Mr. Chatterjee. That disposes
of all the points raised before us.
11. The result is that the appeal fails and is dismissed. In the circumstances of this case, we make no order as to costs.
Guha, J.
12. I agree.
