IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.183 of 2006 Date of decision: 3.4.2008. Himachal Pradesh Financial Corporation ....Petitioner -Versus- M/s.Jiwan Cements & Chemicals (P) Ltd. ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner: Mr.Ashwani Sharma, Advocate. For Respondents: None Deepak Gupta,J.(oral) This petition is directed against the order dated 3rd May, 2006 passed by learned District Judge, Sirmour at Nahan holding that the execution petition filed by the Decree Holder is not maintainable. Brief facts of the case are that the Himachal Pradesh Financial Corporation (HPFC) filed a petition under Section 31 of the State Financial Corporations Act in the Court of learned District Judge, Sirmour at Nahan in which there were nine main respondents and one proforma respondent. The learned District Judge, Nahan allowed the petition qua defendants 1 to 3 only and held that the HPFC was entitled to recover outstanding amount of Rs.1,51,80,559/- and also funded interest amounting to Rs.35,97,952/- alongwith interest at the agreed rate from respondents 1 to 3. 2 Admittedly, respondents 1 to 3 who were the principal debtors did not challenge this order passed against them. However, the HPFC was aggrieved against this order inasmuch as it restricted its right to recover the amount from respondents 1 to 3 only. According to the HPFC it was entitled to recover the amount not only from respondents 1 to 3 but also from respondents 3 to 9 who, according to it, were the guarantors. The HPFC filed an Execution Petition to recover the amount from respondents 1 to 3. This Execution Petition has been rejected on the ground that since FAO No.291 of 2002 has been filed by the HPFC challenging the order of the learned District Judge, therefore, the Execution Petition is not maintainable. I have totally failed to understand the reasons given by the learned District Judge for holding the Execution Petition to be not maintainable. There is a valid decree in favour of the HPFC passed against respondents 1 to 3. This decree has not been challenged by any party. It has attained finality. Why should the same not be executed? The learned trial Court has relied upon a judgment of the Apex Court in Karan Singh and others vs. Bhagwan Singh (Dead) by LRs and others, (1996) 7 SCC 559. The learned trial Court has totally misunderstood the said judgment. In that case the Apex Court only decided that a decree of a trial Court merges with the decree of the Appellate Court and the entire controversy would be open for reconsideration by the Appellate Court. This does not however apply to the facts of the present case. 3 Just because an appeal is filed does not mean that the portion of the decree which has not been challenged by any party cannot be executed. To give an example; supposing a plaintiff files a suit for recovery of Rs.10 lakhs and the suit is only decreed for Rs.5 lakhs. The plaintiff files an appeal in so far as the decree rejects his claim. This does not prevent him from recovering the amount of Rs.5 lakhs for which decree has been passed in his favour. This is clear from the very bare provisions of law. The learned District Judge, in my opinion, has fallen into a grave error and has not even understood the basic principles of law while passing this order. The Execution Petition was maintainable in respect of respondents 1 to 3 since nobody had challenged the decree in so far as it went against respondents 1 to 3. This decree has attained finality and there is no reason why it should not be executed. In view of the above discussion, the petition is allowed, the order of the learned executing Court is set-aside and the executing Court is directed to restore the Execution Petition to its original number and proceed with the Execution Petition in accordance with law. April 3, 2008. ( Deepak Gupta ), PV Judge.