The petitioner herein, filed application
for execution of the decree bearing Regular
Darkhast No. 5 of 2004 in the Civil Court, Parali
Vaijinath on 20th December, 2004. Therefore, on
dismissal of the first appeal i.e. 23rd January,
2002, the said application for execution is filed
within limitation. Therefore, in my opinion, the
court below was not correct in holding that, the
execution application is not filed within
limitation. In view of the judgment of the Supreme
Court in the case of Chandi Prasad (supra), in
view of the merger of the decree of the trial
Court in the decree of the lower appellate Court,
the limitation would start running from 23rd
January, 2002 and upon depositing deficit court
fees as directed by the lower appellate Court. As
observed by the Supreme Court in Chandi Prasad
(supra), it does not matter whether the decree is
modified or merged.
WRIT PETITION NO.1360 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Somnathappa s/o Nagnathappa Halge,
VERSUS
Motilal s/o Govindlal Goud,
CORAM : S.S. SHINDE, J.
PRONOUNCED ON : 08032013
This writ petition takes exception to the
order dated 15th December, 2010 (AnnexureF)
passed by the Joint Civil Judge, Junior Division,
Parali Vaijinath, below Exhibit115 in Regular
Darkhast No. 55 of 2004 and order dated 15th
December, 2010 (AnnexureH) passed by the Joint
Civil Judge, Junior Division, Parali Vaijinath,
below Exhibit1 in Regular Darkhast No. 44 of 2004
thereby dismissing the Execution Petition on the
point of limitation. It is further prayed that,
Regular Darkhast No. 55 of 2004 may be restored to
its original position.
.
The petitioner herein, is the plaintiff
in Regular Civil Suit No. 271 of 1976.
3.
It is the case of the plaintiff herein,
that, on 15th December, 1973 father of petitioner
namely Nagnathappa s/o Tatyaappa Halge had
allotted property worth Rs. 2,00,000/ to his son
Prabhuappa Halge out of his self acquired property
but the aforesaid Nagnathappa had enjoyed the
possession over the suit plot. It is further case
of the petitioner that, on 25th December, 1973
Prabhuappa Halge and one Kamalbai w/o Govindlal
Goud had taken illegal possession of the above
said plot. It is further case of the petitioner
that, on 17th September, 1976 the father of the
petitioner namely Nagnathappa had filed Regular
Civil Suit NO. 271 of 1976 in the Civil Court at
Ambejogai against Prabhuappa Halge and Kamalbai
w/o Govindlal Gound for recovery of possession of
suit plot. In the above said suit, Prabhuappa
Halge had raised a defence against his father
Nagnathappa that, in view of compromise in Regular
Civil Suit No. 218 of 1965, the suit was not
maintainable and the principles of 'estoppel' and
'resjudicata' are applicable.
It is further case of the petitioner
that, on 9th April, 1984 after considering oral
and documentary evidence on record, the learned
2nd Joint Civil Judge, Junior Division, Ambejogai
vide its judgment and order decreed the aforesaid
suit with costs directing that, the present
petitioner ( plaintiff's L.R.1/4 PW1) be put in
possession of suit plot by dispossessing
Prabhuappa and Kamalbai Goud. It is further case
of the petitioner that, on 20th June, 1984 against
the aforesaid judgment and decree, only Kamalbai
w/o Govindlal Goud had filed Regular Civil Appeal
in the District Court, Beed alongwith Civil Misc.
Application No. 137 of 1984 for condonation of
delay of 42 days in filing the said appeal. On 6th
June, 1988 the learned Additional District Judge,
Beed vide its order below Exhibit1 in the
aforesaid Civil Misc. Application No. 137 of 1984
condoned the delay in filing the appeal on payment
of cost. As such, Regular Civil Appeal came to be
registered bearing No.181 of 1988 and subsequently
came to be transferred to the Court of Additional
It is further case of the petitioner
4.
District Judge at Ambejogai.
that, on 23rd January, 2002 after hearing both
the sides, the learned 2nd Additional District
Judge, Ambejogai vide its judgment and order
dismissed the said appeal by confirming the
impugned judgment and decree therein, subject to
payment of deficit court fees by the L.Rs. of the
deceased plaintiff/respondent therein. It is
further case of the petitioner that, being
aggrieved and dissatisfied with the judgment and
decree passed by the lower appellate Court, the
present respondents/L.Rs. of deceased Kamalbai
Goud filed Second Appeal No. 1446 of 2004 before
this Court. On 20th December, 2004 the
petitioner/decree holder filed application for
execution of decree bearing Regular Darkhast No.
55 of 2004 in the Civil Court at Parali Vaijinath.
It is further case of the petitioner that, on 16th
July, 2005 in view of the aforesaid directions,
the petitioner/decree holder deposited deficit
court fees of Rs.332/ before the lower Court vide
Application (Exhibit25) in Regular Darkhast No.
5.
55 of 2004.
It is further case of the petitioner
that, on 16th August, 2005 after hearing both the
sides, the High Court summarily dismissed the
second appeal. On 22nd August, 2005 Civil
Application (Review Petition) No. 10028 of 2005
came to be filed by the respondents in the
abovesaid second appeal alongwith separate Civil
Application No. 2593 of 2009 for bringing on
record certain documents and Civil Application No.
10554 of 2005 for stay. On 6th March, 2009 after
hearing both the sides, High Court was pleased to
dismiss the civil application for review alongwith
other two civil applications. It is further case
of the petitioner that, on 18th December, 2009 the
petitioner herein, filed Misc. Civil Application
No. 65 of 2009 in Regular Civil Appeal No. 181 of
1988 for directions to the Court office to take
note of the deposit of deficit court fees made by
Junior Division, Parali Vaijinath.
the petitioner in the Court of the Civil Judge,
It is further case of the petitioner
that, on 21st December, 2009 the learned District
Judge2, Ambejogai vide its order below Exhibit1
in Misc. Civil Application No. 65 of 2009 directed
the Record Keeper of Ambejogai District Court to
take note of payment of deficit court fees in the
181 of 1988.
record of proceedings of Regular Civil Appeal No.
6.
It is further case of the petitioner
that, on 18th October, 2010 the respondent No.2
Kailash filed application (Exhibit115) in Regular
Darkhast NO. 55 of 2004 for rejecting the
Execution Petition on the point of limitation. The
petitioner herein, filed his say to the said
application. On 15th December, 2010 said
application came to be rejected by holding that,
the decree holder has not filed execution petition
within limitation and that doctrine of merger
would not be applicable in the present case. On
15th December, 2010 in view of the aforesaid
order, the Executing Court vide its impugned order
below Exhibit1 in Regular Darkhast No. 55 of
2004, dismissed the Execution Petition by
observing that, the Execution Petition would not
survive in view of the order below Exhibit115, as
the Execution Petition is filed beyond the period
of limitation of 12 years. Hence, this writ
petition.
The learned Counsel appearing for the
7.
petitioner invited my attention to the pleadings
in the petition, grounds taken therein, annexures
thereto and submitted that, Regular Civil Appeal
No. 181 of 1988 was filed by the respondents and
same was pending and finally it was decided on
23rd January, 2002. The petitioner herein, filed
Execution Proceedings in the year 2004.The
limitation for filing the Execution Petition is 12
years in view of the provisions of Article 136 of
the Limitation Act. It is submitted that, the
decree passed by the trial Court is merged in the
decree of the District Court. It is submitted
that, whether there was stay order during pendency
of the appeal or not, is not relevant to consider
the merger theory.
8.
The learned Counsel appearing for the
petitioner invited my attention to the Larger
Bench judgment of the Supreme Court in the case of
Chandi Prasad vs. Jagdish Prasad reported in
2004(7) Supreme 121, and submitted that, the
Supreme Court has taken a view that, when the
appellate Court passes a decree, the decree of the
trial court merges with the decree of the
Appellate Court. The 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. Therefore,
according to the learned Counsel for the
petitioner, in the present case the first appeal
is decided by the lower appellate Court in the
year 2002. Therefore, at the most, the limitation
to file Execution Petition will start from the
9.
year 2002.
On the other hand, the learned Counsel
appearing for respondent No. 2 submitted that,
during pendency of the Regular Civil Appeal No.
181 of 1988, there was no any stay granted by the
lower appellate Court, therefore, the decree was
enforceable and limitation would start from the
date of passing of the decree by the trial Court.
In support of his contention that, if there is no
stay granted by the lower appellate Court, the law
clearly postulates that, the decree once passed
becomes enforceable unless it is stayed by the
competent Court. The learned Counsel appearing for
the respondent No. 2 pressed into service the
judgment of this Court in the case of Sopan
Rambhau Musale and another vs. Baban Bhagwanta
Khade reported in 2006(5) Bom. CR 448. Therefore,
relying upon the said judgment, contents of the
application which was filed by the respondents
raising objection that, the execution proceedings
are not within limitation, the Counsel for the
respondent No. 2 would submit that, this writ
10.
petition may be dismissed.
I have heard the Counsel appearing for
the parties. With the able assistance of the
Counsel appearing for the parties, I have
carefully perused the entire material placed on
record. In view of provisions of Article 136 of
the Limitation Act, the execution proceeds are
required to be filed within 12 years from the date
of passing of such decree.
11.
The larger Bench of the Supreme Court in
the following question.
What would be the date from which a
the case of Chandi Prasad (supra), has considered
decree becomes enforceable for execution
thereof within the meaning of Article 136
of the Limitation Act, 1963?
.
The Supreme Court has interpreted Article
136 of the Limitation Act, in the case of Chandi
Prasad (supra) and held in paragraph10 that,
where a statutory appeal is provided for, subject,
of course to the restrictions which may be
imposed, it is continuation of suit. It is further
observed in paragraph10 that, 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. The relevant discussion on
Article 136 of the Limitation Act is in paragraph
Nos. 18 to 24 of the judgment in the case of
Chandi Prasad (supra). Said paragraphs read thus :
18. 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 it becomes enforceable.
19. 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.
20. 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 or
money or delivery of any property at a
certain date would be considered to be the
starting period of limitation.
21. 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 v. State of Bombay, AIR 195
SC 5633).
22. When an appeal is prescribed under a
statute and the appellate forum is invoked
and entertained, for all intent and
purport, the suit continues.
MERGER:
23. 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 distinction
between an order of reversal, modification
or an order of confirmation passed by the
appellate authority. The said doctrine
postulate that there cannot be more than
one operative decree governing the same
subject matter at a given point of time.
(Underlines supplied).
24. 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.
Salgaoncar and Bros. Pvt. Ltd. v.
Commissioner of Incometax. AIR 2000 SC
12.
1623). (Underlines added).
Therefore, upon reading above reproduced
paragraphs, it is abundantly clear that, decree of
the trial Court merges with the decree of the
appellate Court. Merger of the decree takes place
irrespective of the fact as to whether the
Appellate Court affirms, modifies or reverses the
decree passed by the trial Court.
.
In the facts of the present case, the
decree is passed by the trial Court on 20th June,
1984. It is not in dispute that, original
respondent Kamlabai Goud filed Regular Civil
Appeal No. 181/1988 in the District Court, Beed
alongwith Misc. Civil Application No. 137 of 1984
for condonation of delay. Said application came
to be decided on 6th June, 1988. R.C.A. No. 181
of 1988 was contested by the parties. The
necessary points were framed by the District Court
and thereafter, after full hearing the said appeal
is finally decided on 23rd January, 2002. Though
the appeal is dismissed, the decree passed by the
trial Court has been merged in the decree of the
lower appellate Court. The lower appellate Court
has directed the petitioner herein, to pay deficit
court fees. Therefore, the decree of the lower
appellate Court is confirmed subject to payment of
deficit court fees by the petitioner herein.
13.
The petitioner herein, filed application
for execution of the decree bearing Regular
Darkhast No. 5 of 2004 in the Civil Court, Parali
Vaijinath on 20th December, 2004. Therefore, on
dismissal of the first appeal i.e. 23rd January,
2002, the said application for execution is filed
within limitation. Therefore, in my opinion, the
court below was not correct in holding that, the
execution application is not filed within
limitation. In view of the judgment of the Supreme
Court in the case of Chandi Prasad (supra), in
view of the merger of the decree of the trial
Court in the decree of the lower appellate Court,
the limitation would start running from 23rd
January, 2002 and upon depositing deficit court
fees as directed by the lower appellate Court. As
observed by the Supreme Court in Chandi Prasad
(supra), it does not matter whether the decree is
modified or merged. In the present case, the
first appeal is fully heard. Parties were given
full opportunity of hearing. Points were framed
for determination and thereafter, the first appeal
is finally decided. The first appeal is
continuation of the suit. The lower appellate
Court has not only confirmed the decree passed by
the trial Court, but in addition, the lower
appellate Court directed the petitioner to pay
deficit court fees.
Therefore, for the reasons aforesaid, the
14.
impugned orders below Exhibit115 and below
Exhibit1 in Regular Darkhast No. 55 of 2004
passed by the Joint Civil Judge, Junior Division,
Parali Vaijinath on 15th December, 2010 are
quashed and set aside. Regular Darkhast No. 55 of
The writ petition is allowed to the above
15.
2004 is restored to its original file.
extent. Rule made absolute on above terms. The
writ petition is disposed of.
sd/
[S.S. SHINDE, J.]
.
At this stage, the learned Counsel
appearing for respondent No. 2 prays that, the
effect, implementation and operation of the
judgment and order pronounced today may be stayed
for a period of four weeks so as to enable him to
take appropriate remedy. The learned Counsel
appearing for the petitioner vehemently opposed
this prayer. However, in the interest of justice,
the effect, implementation and operation of the
judgment and order pronounced today shall stand
stayed for four weeks from today. On expiry of
four weeks period from today, the stay granted by
this Court will stand automatically vacated.
During the period of aforesaid 4 weeks the
respondents shall not create any third party
rights in the suit property.
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