Prasad & Ors Vs. Jagdish Prasad & Ors  Insc 599 (1 October 2004)
N. Santosh Hegde,S.B. Sinha & Tarun Chatterjee 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.
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.
When the matter was placed before a 2-Judge Bench of this Court, a 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.
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
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.
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 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 AIR 1984 SC
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
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 When an appeal
is prescribed under a statute and the appellate forum is invoked and
entertained, for all intent and purport, the suit continues.
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.
AIR 2000 SC 1623] The concept of doctrine of merger and the right of review
came up for 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 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:
"12Once 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
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 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
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.