01 October 2004
Supreme Court
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CHANDI PRASAD Vs JAGDISH PRASAD

Bench: N. SANTOSH HEGDE,S.B. SINHA,TARUN CHATTERJEE
Case number: C.A. No.-000599-000599 / 2003
Diary number: 10932 / 2001
Advocates: K. V. MOHAN Vs M. P. SHORAWALA


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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.