Kerala High Court
Mercy vs Chellayyan Nadar
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THURSDAY, THE 23RD DAY OF JANUARY 2014/3RD MAGHA, 1935
OP(C).No. 4582 of 2013 (O)
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PETITIONER(S):
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MERCY
THOTTATHIL POTTA MELE POTTA PUTHEN VEEDU
KANJAPAZHINJI, THIURUPURAM, NEYYATTINKARA.
BY ADV. SRI.L.MOHANAN
RESPONDENT(S):
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CHELLAYYAN NADAR
S/O.ARULAPPAN NADAR, THOTTATHIL POTTA VEEDU
KANJAPAZHINJI, THIRUPURAM, NEYYATTINKARA-695 121.
BY SRI.G.S.REGHUNATH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23-01-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RKC
OP(C).No. 4582 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1.COPY OF THE DECREE IN OS NO.701/2003 OF THE MUNSIFF COURT,
NEYYATTINKARA.
EXHIBIT P2.COPY OF THE ORDER DATED 15/6/2011 IN EP NO.39/2011 IN OS
NO.701/2003 OF THE MUNSIFF COURT, NEYYATTINKARA.
EXHIBIT P3.COPY OF THE ORDER DATED 15/11/2013 IN EP NO.238/2012 IN OS
NO.701/2003 OF THE MUNSIFF COURT, NEYYATTINKARA.
RESPONDENT(S)' EXHIBITS : NIL
RKC
//TRUE COPY//
PA TO JUDGE.
P.N.RAVINDRAN, J.
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O.P.(C).No.4582 of 2013
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Dated this the 23rd day of January, 2014
JUDGMENT
The defendant in O.S.No.701 of 2003 on the file of the Court of the Munsiff of Neyyattinkara is the petitioner in this original petition filed under Article 227 of the Constitution of India, wherein he challenges Ext.P3 order passed by the Court of the Additional Munsiff-I of Neyyattinkara, overruling his objection to the maintainability of E.P.No.238 of 2012 on the ground that the dismissal of an earlier execution petition which was filed while an appeal from the decree was pending, on the ground that it is barred by limitation, operates as resjudicata. The brief facts facts of the case are as follows:
2. The respondent herein instituted O.S.No.701 of 2003 on 6.10.2003 for a declaration that he has a right of way through the plaint C schedule pathway as an easement of necessity. He had also prayed for a mandatory injunction directing the defendants to restore the plaint C schedule pathway to its original stage and a permanent prohibitory injunction restraining the defendants from obstructing the user of the plaint C schedule pathway. The trial court decreed the suit by judgment delivered on 28.7.2007. By that decree the trial court declared that the plaintiff has got right of way O.P.(C).No.4582 of 2013 ..2..
through the plaint C schedule pathway as an easement of necessity and directed the defendants by a mandatory injunction to restore the pathway to its original position within three months. The trial court directed that if the defendants fail to do so, the plaintiff will be at liberty to have the pathway restored to its original position and to realise the cost of restoration from the defendants. The defendants were also restrained by a permanent prohibitory injunction from obstructing the user of the plaint C schedule pathway.
3. Challenging the decree and judgment passed by the trial court, the defendants filed A.S.No.101 of 2007 on the file of the Court of the Subordinate Judge of Neyyattinkara. During the pendency of the appeal an order staying the execution of the decree of the trial court was not passed. The decree holder thereupon took steps to execute the decree for mandatory injunction by filing E.P.No.39 of 2011 on 11.2.2011. On the short ground that the period of limitation prescribed for executing a decree for mandatory injunction has expired, E.P.No.39 of 2011 was dismissed as barred by limitation by Ext.P2 order passed on 15.6.2011. Shortly thereafter, to be exact on 6.9.2011, the first appellate court before which A.S.No.101 of 2007 was pending, heard and dismissed the appeal with costs. Immediately thereafter the respondent/decree holder filed E.P.No.238 of 2012 to execute the decree for mandatory injunction. The petitioner herein who is the first O.P.(C).No.4582 of 2013 ..3..
defendant in the suit entered appearance and filed objections contending interalia that as the order dismissing E.P.No.39 of 2011 as barred by limitation has attained finality the said decision operates as resjudicata. He contended that under Article 135 of the Limitation Act, an application to execute a decree for mandatory injunction has to be filed within three years from the date of the decree or where a date is fixed for performance from such date, that in the instant case the decree of the trial court was passed on 28.7.2007, that the time fixed for performance, namely three months, expired on 28.10.2007 and therefore the instant execution petition which was filed on 2.11.2012 is barred by limitation. The execution court considered the rival contentions and held relying on the decisions of this Court in P.T.Xavier Vs. Lucy V. Paply [AIR 2002 Ker 146] and Kamalamma Vs. Trivandrum Permanent Bank [1986 KLT 1181] that as the trial court decree has merged with the appellate court decree which was passed on 6.9.2011 and the decree which can be executed is the appellate court decree applying the doctrine of merger, the contention of the defendant that the dismissal of the earlier execution petition would operate resjudicate cannot be accepted. The said order, a copy of which is on record as Ext.P3 is under challenge in this original petition filed under Article 227 of the Constitution of India.
4. I heard Sri.L.Mohanan, learned counsel appearing for the O.P.(C).No.4582 of 2013 ..4..
petitioner and Sri.G.S.Raghunath, learned counsel appearing for the respondent. Sri.L.Mohanan, learned counsel appearing for the petitioner contended that Ext.P2 order whereby the execution court dismissed E.P.No.39 of 2011 in O.S.No.701 of 2003 as barred by limitation for the reason that it was not filed within the period of three years stipulated in Article 135 of the Limitation Act has attained finality, and therefore the second execution petition is barred by resjudicata. The learned counsel also submitted that there is no merger of the appellate decree with the trial court decree for the reason that the trial court decree had become in-executable. The learned counsel also invited my attention to the decision of the Apex Court in C.S.Mani Vs. B.Chinnasamy Naidu [2010 (9) SCC 513] more particularly the observations in paragraph 13 thereof and contended that if an execution petition is dismissed as a consequence of the decree being found to be null and void or in- executable as in the instant case, [the decree becoming in- executable since the application for execution which was filed while the appeal from the decree was pending was dismissed on the ground of limitation] the mere fact that after it was dismissed, the appellate decree was passed affirming the decree of the trial court will not entitle the decree holder to file a fresh application for execution for the reason that earlier order dismissing the execution petition has attained finality. The learned counsel also contended O.P.(C).No.4582 of 2013 ..5..
that in a case where the execution petition is dismissed as barred by limitation during the pendency of the appeal, the principle of merger can have no application notwithstanding the fact that appellate decree is one passed on the merits.
5. A Division Bench of this Court has in Muhammed Kunju v. Lancilad P.Gomez [2001 (3) KLT 21] approved the earlier decision of the Division Bench of this Court in Meenakshi Amma v. Ramakurup [1973 KLT 489] wherein it was held that where there is confirmation, variation or reversal of the decree of a lower court by an appellate court, the executable decree thereafter is certainly the appellate decree namely the affirmed decree, the varied decree or the reversed decree. The Division Bench also held that the appellate decree by itself does not put an end to the execution petition which had already been filed seeking to execute the decree of the original court, that with the passing of the appellate decree the pending execution petition becomes defective but the defect can be set right and the same execution petition can be continued. In Muhammed Kunju Vs. Lancilad P.Gomez (supra) the Division Bench also held that where during the pendency of an execution petition the trial court decree which is sought to be executed is affirmed by the appellate decree, the decree holder gets a fresh starting point of limitation from the date of the appellate decree with which the decree of the trial court has merged. The merger of O.P.(C).No.4582 of 2013 ..6..
a trial court decree with the appellate court decree is not dependant on the question whether during the pendency of the appeal the execution of the decree had been stayed by the appellate court or whether while the appeal was pending as an order staying the execution of the decree had not been passed, the decree holder had taken steps to execute the decree. The principle of merger is based on the reasoning that there cannot be at one and the same time more than one operative order or decree governing the same subject matter. If in the instant case the decree holder could have filed an execution petition for the first time within three years from the date of the appellate decree namely three years from 6.9.2011, I find no reason why he could not have merely for the reason that he had filed an execution petition beyond the period of three years computed from the date of the original decree at a point of time when the appeal from the original decree was pending and got that execution petition dismissed as barred by limitation, filed a fresh execution petition. As observed by the Division bench in Muhammed Kunju v. Lancilad P.Gomez [2001 (3) KLT 21] with the passing of an appellate decree and the merger of the trial court decree with the appellate decree, the decree holder gets a fresh starting point of limitation to file an application to execute the decree. I am therefore of the considered opinion that the dismissal of E.P.No.39 of 2011 as barred by limitation by Ext.P2 order passed O.P.(C).No.4582 of 2013 ..7..
on 15.6.2011 at a point of time when the appeal from the decree was pending before the appellate court cannot be a reason to hold that the decree passed in the suit has become in-executable or to hold that the dismissal of the first execution petition would operate resjudicata or that in view of the dismissal of the execution petition there is no merger of the trial court decree with the appellate decree which was passed after the execution petition was dismissed. I therefore find no reason why this Court should exercise jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order.
6. There is also yet another reason why I am not inclined to interfere with the order passed by the execution court. In column 5 of the execution petition the decree holder had specifically referred to the fact that A.S.101 of 2007 is pending. The execution court therefore ought to have in my opinion stayed its hands and kept the execution petition pending to await the decision in the appeal. If the appellate court had reversed the decree passed by the trial court and dismissed the suit, the execution petition could have been decided on the merits. If on the other hand the decree had been confirmed by the appellate court, the execution court could have at that stage, as held by the Division Bench in Meenakshi Amma v. Ramakurup [1973 KLT 489] allowed the decree holder to set right the defect in the execution petition and to continue the execution O.P.(C).No.4582 of 2013 ..8..
petition. In the instant case, the order passed by the execution court dismissed E.P.No.39 of 2011 as barred by limitation, notwithstanding the pending of an appeal from the decree has caused serious prejudice to the petitioner. Therefore on that ground also, I am of the opinion that the decree holder cannot be visited with the consequences of dismissal of the first execution petition as barred by limitation.
I accordingly hold that there is no merit in the instant original petition. It fails and is accordingly dismissed. No costs.
Sd/-
P.N.RAVINDRAN, JUDGE.
rkc.