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CASE NO.:

Appeal (civil) 599 of 2003

PETITIONER:

Chandi Prasad & Ors.

RESPONDENT:

Jagdish Prasad & Ors.

DATE OF JUDGMENT: 01/10/2004

BENCH:

N. Santosh Hegde,S.B. Sinha & Tarun Chatterjee

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

INTRODUCTION :

What would be the date from which a decree becomes enforceable for

execution thereof within the meaning of Article 136 of the Limitation Act,

1963 (the Act) is the question involved in this appeal which arises out of a

judgment and decree dated 30th March, 2001 passed by the High Court of

Judicature at Allahabad in Civil Misc. Writ Petition No. 8954 of 2001.

FACTS

A suit for partition was filed by the Respondents herein against the

Appellants wherein a preliminary decree was passed on 25.4.1962. A final

decree proceeding was thereafter initiated whereupon the final decree was

prepared on 7.5.1968. On or about 6.8.1968 an execution case marked as

Execution Case No. 279 of 1968 was filed by the Respondents. As against

the said final decree, however, in the meanwhile a First Appeal had been

filed which was marked as Civil Appeal No. 502 of 1968. It was dismissed

by an order dated 21.3.1969. A Second Appeal thereagainst was preferred

by the Appellants which was allowed and the matter was remitted back to

the Appellate Court for determining the merit of the appeal afresh.

The first Appellate Court again dismissed the appeal on 4.1.1974. In

the meanwhile, the said execution petition was dismissed, presumably

because the Second Appeal filed by the Appellants was allowed. Against

the judgment and decree dated 4.1.1974 passed by the Appellate Court in

Civil Appeal No. 502 of 1968, the Appellants herein preferred a Second

Appeal before the High Court which was marked as Second Appeal No. 481

of 1974. The said appeal was dismissed by the High Court on 18.4.1985. A

formal decree pursuant thereto was drawn on 30.10.1986. An application

for execution of the decree was filed by the Respondents on 26.3.1997.

Contending that the said execution application is barred by limitation, the

Appellants filed an application under Section 47 of the Code of Civil

Procedure (the Code) which was dismissed by the Executing Court by an

order dated 1.5.1999. The Respondents preferred Misc. Appeal No. 32 of

1999 against the order of Executing Court before the Additional District &

Session Judge, Hapur which was allowed holding that the said execution

application was not barred by limitation. The Appellants herein filed a writ

petition before the High Court questioning the correctness of the said order.

The said Writ Petition has been dismissed by the impugned order dated

30.3.2001. Hence this Appeal.

REFERENCE :

When the matter was placed before a 2-Judge Bench of this Court, a

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decision in Ratansingh Vs. Vijay Singh & Ors. [(2001) 1 SCC 469] was

relied upon by the Appellants. Doubting the correctness thereof, the said

Division Bench by an order dated 9.1.2003 referred the matter to a 3-Judge

Bench.

SUBMISSIONS :

Mr. M.N. Krishnamani, learned senior counsel appearing on behalf of

the Appellants submitted that the High Court as also the first Appellate

Court committed a manifest error in passing the impugned orders insofar as

they failed to take into consideration the purport and object of amending old

Article 182 by reason of Article 136 of the Act.

The learned counsel would contend that in terms of old Article 182 of

the Act the date of the final decree or order of the Appellate Court or the

withdrawal thereof would be the starting point for limitation for computing

the period in terms thereof but the very fact that now in stead and place of

seven different dates specified therefor for filing an execution petition only

one date viz., where the decree or order becomes enforceable, is substituted,

it must be held that in absence of any order of stay granted by the Appellate

Court, the date of decree of the trial court/first Appellate Court would be the

enforceable date for the purpose of Article 136 of the Act; as by reason

thereof the period of limitation has been enhanced from 3 years to 12 years,

Mr. Krishnamani would contend, the Parliament thus intended to provide

that the date of the decree of the first Appellate Court would be the starting

period of limitation.

In any event, the learned counsel would contend that a Second Appeal

against an appellate decree being entertainable only on limited ground,

namely, on a substantial question of law, doctrine of merger will have no

application in relation thereto and in that view of the matter, limitation to file

an execution application will be deemed to have been running only from

4.1.1974 and not with effect from 18.4.1985.

Ms. Sandhya Goswami, learned counsel appearing on behalf of the

Respondents, however, supported the impugned judgment.

CHANGE IN LAW:

A decree is defined in Section 2(2) of the Code to mean the formal

expression of an adjudication which, so far as regards the Court expressing

it, conclusively determines the rights of the parties with regard to all or any

of the matters in controversy in the suit and may be either preliminary or

final. As against a judgment and decree unless otherwise restricted, a First

Appeal would be maintainable under Section 96 of the Code and a Second

Appeal under Section 100 thereof. A decree within the meaning of Section

2(2) of the Code would be enforceable irrespective of the fact whether it is

passed by the trial court, the first Appellate Court or the second Appellate

Court.

Where a statutory appeal is provided for, subject, of course to the

restrictions which may be imposed, it is a continuation of suit. It is also not

in dispute that when a higher forum entertains an appeal and passes an order

on merit, the doctrine of merger applies.

Before, however, adverting to the aforementioned doctrine, Article

136 of the Act vis-`-vis Article 182 of the old Limitation Act may be

noticed.

In the old Limitation Act, not only the date of disposal of the appeal

or the withdrawal thereof, the date of the review of the judgment, the date

when the decree which has been amended or other factors specified therein

were considered to be the starting period of limitation. The period provided

for execution of a decree under the Act is a statutory one.

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Under the old Limitation Act, law relating to limitation for execution

was to be found in Section 48 of the Code (since repealed) and Articles 182

and 183 thereof.

Section 48 of the Code and Article 182 of the old Limitation Act

applied to the execution of decrees or orders passed by the courts other than

those established by Royal Charter and of the Supreme Court whereas

Article 183 applied to execution of decrees and orders of courts established

by Royal Charter and Supreme Court. Section 48 of the Code provided for a

maximum period of 12 years before the expiry of which any fresh

application for execution had to be made. The period of limitation

provided under Section 48 of the Code used to be controlled by Articles 182

and 183 of the old Limitation Act. (See Lalji Raja Vs. Farm Hansraj, AIR

1971 SC 974).

Section 48 of the Code of Civil Procedure was also used to be

controlled by Section 15(1) of the old Limitation Act.

The substance of Section 48, thus, continues to be the law. It is also

trite that the provisions of the Code of Civil Procedure as also the Act have

all along been considered to be supplemental to each other. It is also well-

settled that execution of the decree would mean the enforcement of the

decree by what is known as process of execution. All processes and

proceedings in aid to or supplemental to execution would come within the

meaning of the word "execution" within the meaning of Section 15(1) of the

Limitation Act. [See Anandilal and Another Vs. Ram Narain and others,

AIR 1984 SC 1383].

Keeping in view the fact that the first execution petition was

maintainable at different stages of same proceedings but the same used to be

filed within a period of 12 years under the Code of Civil Procedure and such

application was required to be made in a period of 3 years from various

points of time as specified in Article 182 of the old Limitation Act, the

Parliament thought it expedient to carry out an amendment.

The reasons for bringing on the statute book, the present Article 136

may be noticed. By reason of the said amendment, the filing of the

execution petition has been simplified and the difficulties faced for

computation which used to arise for grant of stay or not has become

immaterial. In terms of Article 136 of the Act, thus, a decree can be

executed when it becomes enforceable.

Article 136 substantially reproduces the provisions of Section 48(1) of

the Code of Civil Procedure which by reason of the Act stands repealed. In

that view of the matter, the Parliament thought it fit to provide for one period

of limitation for an application for execution in stead and place governing

each of the several execution applications which the decree holder can make

within a period of 12 years.

It is not disputed that all decrees; be it original or the appellate, are

enforceable. Once a decree is sought to be enforced for the purpose of

execution thereof irrespective of being original or appellate, the date of the

decree or any subsequent order directing any payment of money or delivery

of any property at a certain date would be considered to be the starting

period of limitation.

It is axiomatic true that when a judgment is pronounced by a High

Court in exercise of its appellate power upon entertaining the appeal and a

full hearing in presence of both parties, the same would replace the judgment

of the lower court and only the judgment of the High Court would be treated

as final. [See U.J.S. Chopra Vs. State of Bombay, AIR 1955 SC 633]

When an appeal is prescribed under a statute and the appellate forum

is invoked and entertained, for all intent and purport, the suit continues.

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MERGER:

The doctrine of merger is based on the principles of propriety in the

hierarchy of justice delivery system. The doctrine of merger does not make

a distinction between an order of reversal, modification or an order of

confirmation passed by the appellate authority. The said doctrine postulates

that there cannot be more than one operative decree governing the same

subject matter at a given point of time.

It is trite that when an Appellate Court passes a decree, the decree of

the trial court merges with the decree of the Appellate Court and even if and

subject to any modification that may be made in the appellate decree, the

decree of the Appellate Court supersedes the decree of the trial court. In

other words, merger of a decree takes place irrespective of the fact as to

whether the Appellate Court affirms, modifies or reverses the decree passed

by the trial court. When a special leave petition is dismissed summarily,

doctrine of merger does not apply but when an appeal is dismissed, it does.

[See V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income-tax,

AIR 2000 SC 1623]

The concept of doctrine of merger and the right of review came up for

consideration recently before this Court in Kunhayammed and Others Vs.

State of Kerala and Another [(2000) 6 SCC 359] wherein this Court inter

alia held that when a special leave petition is disposed of by a speaking

order, the doctrine of merger shall apply stating:

"41. Once a special leave petition has been

granted, the doors for the exercise of appellate

jurisdiction of this Court have been let open. The

order impugned before the Supreme Court

becomes an order appealed against. Any order

passed thereafter would be an appellate order and

would attract the applicability of doctrine of

merger. It would not make a difference whether

the order is one of reversal or of modification or of

dismissal affirming the order appealed against. It

would also not make any difference if the order is

a speaking or non-speaking one. Whenever this

Court has felt inclined to apply its mind to the

merits of the order put in issue before it though it

may be inclined to affirm the same, it is customary

with this Court to grant leave to appeal and

thereafter dismiss the appeal itself (and not merely

the petition for special leave) though at times the

orders granting leave to appeal and dismissing the

appeal are contained in the same order and at times

the orders are quite brief. Nevertheless, the order

shows the exercise of appellate jurisdiction and

therein the merits of the order impugned having

been subjected to judicial scrutiny of this Court.

42. "To merge" means to sink or disappear in

something else; to become absorbed or

extinguished; to be combined or be swallowed up.

Merger in law is defined as the absorption of a

thing of lesser importance by a greater, whereby

the lesser ceases to exist, but the greater is not

increased; an absorption or swallowing up so as to

involve a loss of identity and individuality. (See

Corpus Juris Secundum, Vol. LVII, pp. 1067-68)

43.We may look at the issue from another angle.

The Supreme Court cannot and does not reverse or

modify the decree or order appealed against while

deciding a petition for special leave to appeal.

What is impugned before the Supreme Court can

be reversed or modified only after granting leave

to appeal and then assuming appellate jurisdiction

over it. If the order impugned before the Supreme

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Court cannot be reversed or modified at the SLP

stage obviously that order cannot also be affirmed

at the SLP stage."

In Kunhayammed (supra), it was observed:

"12\005Once the superior court has disposed of the

lis before it either way - whether the decree or

order under appeal is set aside or modified or

simply confirmed, it is the decree or order of the

superior court, tribunal or authority which is the

final, binding and operative decree or order

wherein merges the decree or order passed by the

court, tribunal or the authority below. However,

the doctrine is not of universal or unlimited

application. The nature of jurisdiction exercised by

the superior forum and the content or subject-

matter of challenge laid or which could have been

laid shall have to be kept in view."

The said decision has been followed by this Court in a large number

of decisions including Union of India and Others Vs. West Coast Paper

Mills Ltd. and Another [(2004) 2 SCC 747].

However, when an appeal is dismissed on the ground that delay in

filing the same is not condoned, the doctrine of merger shall not apply. [See

Raja Mechanical Company Pvt. Ltd. Vs. Commissioner of Central Excise,

ILR 2002 (1) Del. 33]

RATANSINGH:

In Ratansingh (supra), possession of a property was obtained on

14.12.1970. The First Appeal thereagainst was dismissed on 1.8.1973.

Execution Petition was filed on 24.3.1988, i.e., beyond the time fixed by the

Act. The Second Appeal preferred by the judgment debtor was rejected

having regard to the fact that the delay in filing the said appeal was not

properly explained.

Upon analyzing when a decree or order becomes enforceable vis-`-vis

the definition of 'decree' in Section 2(2) of the Code this Court observed

that when a dismissal of an appeal takes place on the ground of its being

time barred, no decree is passed.

Ratan Singh (supra), therefore, has no application in this case as

admittedly herein the High Court upon dismissal of the Second Appeal had

drawn up a formal decree on 30th October, 1986.

For the reasons aforementioned, we are of the opinion that no case has

been made out for interference with the impugned judgment. There is no

merit in this appeal which is dismissed accordingly. No costs.