' MAULVI ANWARUL HAQ, J. This judgment shall decide F.A.O. No,252 of 2006 and F.A.O. No,286 of 2006 as these proceed against a common ,order.
2. A suit filed on 26-11-2001 by the respondents Nos.1 and 2 against the appellants was decreed by a learned Additional District Judge, Gujranwala, on 6-3-2003. I may note here that the suit was filed for recovery of Rs,18,48,500 under Order. XXXVII, C.P.C. The leave to defend was granted to the appellants subject to furnishing of Bank Guarantee. The condition was not complied with. The leave was re-called and the suit was decreed with interest at the rate of 2% till realization. Against this decree, the appellants filed RFA No,370 of 2003 in this Court. Vide judgment dated 9-3-2004 the RFA was partly allowed inasmuch as all the findings of the learned trial Court and decree in the sum of Rs,18,49,500 was up-held while the interest was waived. A decree sheet was prepared by the office of the Court on A 9-3-2004. Against this judgment, C.A. No,418 of 2004 was filed by the appellant.
The appeal was dismissed by the Honourable Supreme Court of Pakistan on 5-7-2004.
3. On 24-3-2004 an application was filed for execution of the decree dated 6-3-2003. Property belonging to the appellants was attached. It was sold on 24-8-2005 and knocked down to respondent No,3 in the sum of Rs,41,70,000. The amount was deposited in Court.
4. On 25-8-2005 the appellants filed an application in the Executing Court informing that the decree has been modified and the decretal amount be amended accordingly. This application was dismissed by the Executing Court on the same day. Against this order, the appellants filed C.R.No,2044 of 2005 in this Court, which was allowed on 6-3-2006 and the said order dated 25-8- 2005 was set aside and the learned Executing Court was called upon to decide the application afresh. I deem it proper to reproduce hereunder para 7 of the said judgment:-- "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."
'Meanwhile on 3-9-2005 the appellants filed an application in terms of Order XXI, rule 90, C.P.C. For setting aside of the sale dated 24-8-2005. This application was replied by the decree-holders i.e, the respondents Nos.1 and 2 as also by the auction purchaser i.e, respondent No,3. The objections were dismissed by the learned Executing Court D on 11-7-2006. The decree holders were to withdraw the decretal amount of Rs,18,49,500 while the balance was to be withdrawn by the appellants-judgment debtors. Against the said order FAO No,252 of 2006 has been filed by the appellants/ judgment debtors and FAO No,286 of 2006 has been filed by respondents Nos.1 and 2/decree holders.
5. Mr. Saif-ul-Malook, Advocate/ learned counsel for the appellants contends that the decree having been modified by this Court while partly allowing the RFA and a fresh decree having been prepared, the decree passed by the trial Court on E 6-3-2003 could not have been executed and the sale ordered and conducted after 9-3-2004 i.e, when the RFA had been allowed is void as decree to be executed was the one passed by this Court in the RFA. He relies on the cases of F.A.
Khan v. The Government of Pakistan PLD 1964 SC 520 and Nizam ud Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130. Learned counsel for respondents Nos.1 and 2/decree holders contends while pressing FAO No,286 of 2006 that in view of the terms of the judgment passed by the Honourable Supreme Court in C.A.No,418 of 2004 the original trial Court decree stood restored and was correctly executed and further that the decree holders are entitled to the amount of the original decree i.e, the suit amount with interest. Learned counsel for the auction purchaser-respondent No,3 contends that no prejudice has been caused to the appellants as ultimately the decree was executed for a sum of Rs,18,49,500 and not for the decretal amount as per the original decree dated 6-3-2003. According to him, any amendment in the decree or even if the decree is set aside would not effect the validity of sale in favour of his client. He relies on the cases of Sorimuthu Pillai and others v. Muthukrishna Pillai AIR 1933 Madras 598, Mannalal Balgovind Mishra v. Bhalchandrao Ramchandrarao Bhushute AIR 1960 Madhya Pradesh 41 and Baburam Lal and another v. Debdas Lala AIR 1959 Calcutta 73. Mr. Saif-ulMalook, Advocate, re-joins to take me through the relevant portions of the judgment dated 5-7-2004 of the Honourable Supreme-Court of Pakistan in C.A.No,418 of 2004 to urge that the judgment delivered by this Court in the RFA was upheld and the appeal was dismissed by the Honourable Supreme Court of Pakistan particularly relies on the said above produced para 7 of the judgment dated 6-3-2006 in C.R. No,2044 of 2005.
6. At this stage, Mr. Saif-ul-Malook, Advocate/learned counsel for the appellants as also appellant No,1 present in person state at the bar that without prejudice to the objection raised noted above, the appellant hereby undertakes to make a deposit of Rs,18,49,500 for payment to the decree holders and a deposit equal to 5% of Rs,41,70,000 i.e, the bid amount of respondent No,3 for payment to the said purchaser as compensation in the Executing Court provided ten days time is granted for the said deposit.
7. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. The proceedings that took place after passing of the decree of the trial Court as also of this Court have been stated above. It will be important to note that the execution application was filed on 24-3-2004 i.e, at a point of time when this Court while partly allowing the RFA had modified the decree on 9-3-2004 and a decree sheet had also been prepared. The rule laid down by the Honourable Supreme Court of Pakistan in the said case of F.A. Khan relying upon a Full Bench judgment of the High Court of Bengal (16 S.W.R.1) and affirmed by the Judicial Committee of the Privy Council in the case of Kristo Kinkur Ray and another v. Rajah Burrodacaunt Roy and another (14 Moor's I.A. 465) is expressed at page 529 of the said report as follows:-- "(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 one proceedings."
'The judgment of this Court in the case of Nizam-ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130 is also to similar effect. The decree of the. Trial Court dated 6-3-2003 having ceased to exist on 9-3-2004, there was no question of putting the said decree into execution on 24-3-2004. The judgments cited by the learned counsel for the respondent-purchaser from Indian jurisdiction proceed on totally different facts. In all the said cases, the trial Court's decree ceased to exist at a point of time when the sale had already taken place and following the wordings of Order XXI, Rule 92, C.P.C. That where the decree was in existence on the day the sale took place then it was not necessary for confirmation of the said sale that the decree existed on the day of confirmation of sale. In fact, the cases from Madhya Pradesh and Calcutta do lay down that in case of confirmation or modification of decree amendment of the execution application may be allowed. In the present case, the entire process of F execution commenced when the trial Court's decree had ceased to exist.
8. Coming to the appeal filed by the decree holder, the same is wholly misconceived. The decree passed by the learned trial Court with interest on the principal amount was modified by this Court vide judgment dated 9-3-2004 in RFA No,370 of 2003 and it was this G judgment which was ultimately maintained in the appeal filed by the present appellants C.A.No,418 of 2004. Besides a Division Bench of this Court while deciding C.R.No,2044 of 2005 categorically held that it will be the modified decree passed by this Court which is to be executed by the Court of first instance.
9. In the said legal and factual position, I dismiss FAO No,286 of 2006 filed by the decree holders.
However, I am H inclined to grant the prayer made by the appellants as offered by their learned counsel. They are directed to deposit a sum of Rs,18,49,500 for payment to the decree holders and an amount equal to 5% of Rs,41,70,000 for payment to respondent H No,3-purchaser in the Executing Court within 10 days. If they make the said deposits the decree passed by this Court on 9-3-2004 in RFA_ No,370 of 2003 shall stand fully satisfied and execution to be consigned to the records. However, in case they fail to do so, FAO No,252 of 2006 filed by the judgment debtors shall stand dismissed. At the moment the parties are left to bear their own costs.