Mukerji, J. - (1.) THIS is an application by certain Defendants for the reduction of a certain decree, particulars of which we shall presently state, under the provisions of Section 4 of the U.P. Zamindars Debt Reduction Act, 1952 (Act No XV of 1953),
(2.) A suit was filed by Lala Babu Ram and Lala Nanhu Mal on the 4th of July 1945 for the recovery of Rs. 30,000 on the foot of a simple mortgage dated 13th of April 1931. The suit was dismissed by the trial court on the 31st of July 1948 and an appeal was preferred to this Court by the Plaintiffs. This appeal was filed on the 9th of December 1948 and was numbered as First Appeal No. 428 of 1948. The appeal came up for hearing before Gurtu and Roy, JJ. and their Lordships allowed the appeal by their judgment dated the 20th of Feb. 1959. The result of the judgment of this Court was that the Plaintiffs' suit was decreed with costs with pendete lite and future interest at 3 per cent per annum. this Court directed that the usual decree which followed in such cases under Or. 34, R. 4, Code of Civil Procedure was to be drawn up and the Defendants were to have the usual six months' time to pay the money. It appears that the Defendants did not pay up the decretal amount and the decree remained outstanding, although we have not been informed as to whether or not a final decree as contemplated by law has been passed or not. On the 15th of November 1959, the Defendants judgment debtors made an application in this Court purporting to be one under Section 4 of the UP Zamindars Debt Reduction Act 1952. A preliminary question has been raised namely, whether or not this Court had jurisdiction to entertain the application and pass orders thereon. The relevant portion of Section 4 of the UP Zamindars' Debt Reduction Act is in these words: 4(1) Notwithstanding anything in the Code of Civil Procedure 1908, or any other law, the court, which passed a decree to which this Act applies relating to a secured debt shall, on the application either of the decree -holder or judgment -debtor, proceed as hereinafter stated. .... 3. The question that arises is whether the expression 'the court, which passed a decree' was wide enough to include a court of appeal. In the instant case, as we have seen earlier, the trial court did not pass a decree in favour of the Plaintiffs for it dismissed the Plaintiffs' suit with costs. Therefore, if there was any decree, of the court of first instance then there was a decree for costs only in favour of the Defendants judgment debtors. The decree which this Court made in favour of the Plaintiffs -decree holders was a preliminary decree as provided for under Or. 34, R. 4, CPC. We have not before us, however, the actual decree that was prepared by this Court, The question that arose for determination was whether the decree which this Court made could be deemed to be a decree as contemplated by Section 4 of the UP Zamindars' Debt Reduction Act, namely, it comes within the purview of the words 'the court, which passed a decree to which this Act applies..... If the matter was one of execution then in accordance with Section 37 Code of Civil Procedure 'the Court, which passed a decree' or words to that effect would include or mean, where the decree was passed in exercise of appellate jurisdiction, the court of first instance. There may be some difficulty in holding with any certainty that an application under Section 4 of the UP Zamindars Debt Reduction Act would be a matter in execution, and therefore, it may be that there would be difficulty in applying the provisions of Section 37.
(3.) AN appellate court does not, in the sense in which the words 'the court, which passed a decree' should be understood, pass a decree. Section 99 of the Code says this: - 99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case on the jurisdiction of the Court.;