' MIAN HAMID FAROOQ, J.---Instant revision petition proceeds against order, dated 25-8-2005, whereby the learned executing Court dismissed petitioners' application for amendment of decretal amount.
2. Precisely stated facts of the case are that when the petitioners failed to furnish the bank security for a sum of Rs,18,49,500, subject to which they were, granted leave to appear and defend the suit, the learned Additional District Judge on 6-3-2003, decreed respondents Nos.1 and 2/plaintiffs' suit for recovery of Rs,18,49,500, against the petitioners, filed under the provisions' of Order XXXVII, C.P.C.
Together with interest @ 2% as prayed for till realization of the decretal amount. The petitioners challenged the said decree, through filing the appeal (R.F.A. No, 370 of 2003), and this Court partly allowed petitioners' appeal and modified the decree, dated 6-3-2003 to the extent that the respondents were held not to be entitled to recover interest, vide judgment and decree, dated 9-3- 2004. The petitioners filed direct appeal (C.A. No,418 of 2004) before the Hon'ble Supreme Court of Pakistan, however, the same was dismissed on 5-7-2004. The decree-holder filed the execution petition for realization of the amount of Rs,18,49,500 together with interest @ 2% and thereupon the learned executing Court appointed Court Auctioneer for the sale/auction of the property of the petitioners. The petitioners, then filed the application seeking amendment in the decretal amount, so as to exclude the amount of interest from the decree. The said application was dismissed by the learned executing Court, vide impugned order, dated 25-8-2005, hence the present petition.
3. Learned counsel for the petitioners submits that this Court, while deciding petitioners' appeal, modified the decree of the trial Court to the extent of awarding of interest, therefore, the amount of interest granted by the learned trial Court cannot be recovered. He has added that the impugned order is not sustainable in law. Contrarily, respondent No,1, who has preferred to argue the case himself, has stated that petitioners' appeal was dismissed by the Hon'ble Supreme Court of Pakistan, therefdie, the decree passed by the learned trial Court is necessarily to be executed.
4. We have heard the learned counsel for the petitioners and respondent No,1. The learned trial Court decreed respondents' suit for recovery together with interest @ 2% as prayed for till realization of the decree. This Court, by partly accepting petitioners' appeal (R.F.A. No,370 of 2003), and while holding that "the respondents are not entitled for the grant of interest, which has illegally been allowed by the learned trial Court and to that extent we are inclined. To modify the impugned decree", modified the decree to the extent of awarding of interest, vide judgment, dated 9-3-2004.
Pursuant to the said judgment, decree sheet was drawn, wherein it was ordered as follows : "It is ordered that the appeal be partly allowed and that the judgment and decree of the Additional District Judge, Gujranwala, dated 6th March, 2003, be modified to the extent of awarding of interest, at the rate of Rs,2% till realization, however, the rest of the findings of the learned trial Court and awarding of decree to the extent of Rs,18,49,500 only shall remain operative and hold the field."
' The Hon'ble Supreme Court of Pakistan, while observing that "we having heard the learned counsel for the parties and perused the record, taken no exception to the judgment of High Court and maintain the decree passed by the trial Court in the suit", proceeded to dismiss the appeal, vide judgment, dated 5-7-2004.
5. It flows from the above narrative that the decree passed by the learned trial Court whereby the interest was awarded to respondents Nos. 1 and 2, stood modified by this Court, thereby declining to award the amount of interest to plaintiff and the judgment of this Court was upheld by the Hon'ble Supreme Court of Pakistan.
6. There is no cavil with the proposition that the Court of first instant is competent to implement the final order in terms of section 37(a), C.P.C. As the order passed by the Court of first instance merges in the appellate order. We find support from the judgment reported as Ardeshir Cowasjee v.
Behram D. Avari and 4 others 1984 CLC 2494, whrein it has been held as under:-- "we are unable to agree with learned counsel that this Court has got concurrent jurisdiction with the Court of first instance in the matter of execution of appellate decrees. The order of the Court of first instance dated 8th March, 1983, which was modified in appeal by us by order, dated 26th May, 1983, shall be deemed to have been merged in the appellate order. Now it is the Court of first instance which is competent to implement the final orders in terms of section 37(a), C.P.C."
' This Court in the case reported as Nizam-ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130 has also taken the similar view that the decree of the Court of first instance merges into the decree of appellate Court and "it does not make any difference whether the decree of the lower Court has been affirmed, reversed or modified because it is the final decree i.e, decree passed by the Court of last instance which can be executed."
' In the case reported as Zahur Din v. Anjuman Himayat-I-Islam 1989 M LD 480, this Court while relying upon the judgment of F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 has held that "once the appeal is filed, the finality of the decree of the trial Court stands destroyed and after the decision of the appeal, the decree, which can be executed, is that of the appellate Court even though it had merely affirmed the decision of the trial Court."
7. In this case, as the decree passed by the learned trial Court, thereby awarding interest to the respondents, was modified by this Court, therefore, in view of the principles of law decided by the superior Courts, as noted above, the decree passed by the learned trial Court stood merged into the decree of the appellate Court and thus the modified decree of this Court wherein admittedly, the amount of interest was not awarded, shall be executed by the Court of first instance.
8. The Hon'ble Supreme Court of Pakistan did not take any exception to the judgment of this Court, therefore, the modified decree holds the field. The learned trial Court did not take into consideration the terms of modified decree and decided the matter in a slipshod manner. Besides other legal infirmities, the tenor of the impugned order has persuaded us to interfere in the order and set it aside, which is devoid of reasons as well.
9. In the above perspective we find that the learned trial Court has definitely committed illegality and material irregularity in rendering the impugned order and thus we are persuaded to set it aside, which we hereby do.
10. Upshot of the above discussion is that the present revision petition is allowed and the impugned order, dated 25-8-2005 is set aside with no order as to costs. Resultantly petitioners' application for amendment of the decretal amount shall be deemed to be pending before the learned executing Court, who shall decide the same afresh, after hearing the parties and of course in accordance with law.
11. Revision petition stands finally disposed of.