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1 - 3 of 3 (0.25 seconds)Sital Parshad vs Kishorilal on 6 March, 1967
8. Mr. Hussain put reliance on the decision in the case of Sita Prasad (supra). In that case, considering the similar question Their Lordships held as under:
Gobardhan Das vs Lachhmi Ram And Ors. on 24 March, 1954
The case of Sohrat Singh v. Bridgman was however explained in a later case Gobardhan Das v. Gopal Ram where the facts were these: The first Court of appeal affirmed the decree of the Count of first instance and the High Court affirmed the decree of the lower appellate Court and dismissed the appeal. The decree-holder made an application in which he did not expressly as the Court to execute the decree of the last instance but it could be gathered from the application of the decree-holder that his object was to have execution taken under the decree of the appellate Court by carrying out the mandatory part of the decree of the Court of first instance. It was held in these circumstances that the objection that the decree-holder did not in his application expressly ask the Court to execute the decree of the last instance was under the circumstance a mere technical objection and there was no reason why the execution asked for should not be allowed. In my opinion this decision will govern the present case where also, although the decree holders have not expressly asked the Court to execute the decree of the appellate Court, yet they do mention that an appeal was preferred on behalf of the judgment-debtors in the High Court of Patna and was decided in favour of the decree-holders oh the 20th April, 1925. It is thus clear that what the respondents were trying to execute was the mandatory part of the decree of the first Court as affirmed by the Court of appeal and it will be the merest technicality to say under these circumstances that the decree-holders were asking for the execution of the decree of the first Court, something distinct from the decree of the appellate Court.
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