Kerala High Court
Raman Gopi vs Kunju Raman Uthaman on 10 January, 2011
Bench: Pius C.Kuriakose, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 785 of 2007()
1. RAMAN GOPI,
... Petitioner
2. RAMAN VASU,
Vs
1. KUNJU RAMAN UTHAMAN,
... Respondent
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.SUBHASH CYRIAC
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/01/2011
O R D E R
C.R. S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.785 OF 2007 (C)
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Dated this the 10th day of July, 2009 REFERENCE ORDER A short but a question of moment arises for consideration in the revision, which is filed against an order passed by the learned Munsiff, Punalur, holding that the decree which was challenged as barred by limitation is executable. The judgment debtor in E.P.No.14/2005 in O.S.No.184/1986, who suffered that adverse order is the revision petitioner, and the decree holder, the respondent.
2. Suit was one for recovery of possession and it was decreed on 14.2.1990. The decree was challenged by the judgment debtor with a petition to condone delay before the Sub Court, Kottarakkara as A.S.No.49/1990. Petition moved for condonation of delay in preferring the appeal was dismissed, consequently the appeal also dismissed by judgment dated 18.12.2000. The execution petition was filed before the Munsiff Court, Punalur on 31.1.2005, that is, fourteen years after passing of the decree by that court. The CRP.785/07 2 execution of the decree was objected to by the judgment debtor as barred by limitation and the question posed for consideration was whether the period of limitation for executing the decree commenced after the disposal of the appeal or from the date of the decree of the trial court. The learned Munsiff relying on Kamalamma v. Trivandrum Permanent Bank (1986 KLT 1181) concluded that such commencement was only from the date of disposal of the appeal and hence the decree can be executed and the execution petition is maintainable. The order passed by the learned Munsiff to continue the execution proceedings is challenged as one without jurisdiction, illegal and vitiated by material irregularity.
3. I heard the learned counsel Adv.S.Sreekumar appearing for the revision petitioners and Adv.Subash Syriac, for the 1st respondent. The counsel on both sides invited my attention to the judicial pronouncements rendered on the question whether the dismissal of an appeal from a decree filed with a petition to condone delay consequent to the dismissal of the petition for delay, would extend the period of limitation for execution of the decree till the date of dismissal CRP.785/07 3 of such appeal. Since there is no controversy on any facts involved in the case, the question posed for consideration solely rests on a pure question of law as to the effect of a dismissal of an appeal preferred with a petition for condonation of delay on dismissal of such delay petition, whether it would amount to confirmation of the decree appealed against.
4. A Full Bench of this Court in Thambi v. Mathew (1987 (2) KLT 848 (F.B.)), after examining the issues involved over that vexed question which continued as a conundrum, over which conflicting views had been expressed by the Division Bench of this Court in Chandrika Amma v. Mohammed (1984 KLT 677) and Chakkuvarkey v.
Devassy Kathanar (AIR 1962 Kerala 104), had concluded thus:
"A dismissal of an application for condonation of delay results in the dismissal of the appeal which can only be under Rule
11. Section 3 of the Limitation Act also requires an appeal filed after the prescribed period of time to be dismissed subject to the provisions contained in Sections 4 to 24.
Sub-rule (3) of Rule 3A does not render an CRP.785/07 4 appeal properly presented under Sub rule (1) a proposed appeal. Sub rule (3) in spite of its language would only mean that no stay of the execution of the decree appealed against shall be granted before the court after hearing the appeal under Rule 11 desides to admit the same. An appeal presented out of time is nevertheless an appeal in the eye of law for all practical purposes. An order dismissing the appeal is a decree that can be subject of a second appeal. It is thus clear that the dismissal of an appeal is under Order 41 Rule 11 postulates the drawing up of a decree which can be the subject matter of a further appeal under Order 41 Rule 1 read with Order 42 of CPC. Rule 3A of Order 41 introduced by the CPC Amendment Act, 1976 does not in any way affect this principle. An appeal registered under Rule 9 of Order 41 is to be disposed of according to law and a dismissal of the appeal for the reason of delay is in substance and effect a confirmation of the decree appealed against." In the above case, the conclusion so formed was formulated after considering and critically analysing the conflicting judicial pronouncements over that vexed question and finally placing emphasis on the views expressed mainly on the decisions of the apex court in Raja Kulkarni v. The State of Bombay (AIR 1954 SC 73), Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) and Keval Ram v. Ram Lubhai ((1987) 2 SCC 344). In Raja Kulkarni v. The CRP.785/07 5 State of Bombay (AIR 1954 SC 73) the apex court has held thus:
"Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, eg., when it is held to be barred by limitation or that it does not lie before that court or is concluded by a finding of fact under Section 100 of the CPC. From the mere fact that such appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court."
In Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332), the view taken in the earlier decision referred to above was reiterated by holding that, where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for CRP.785/07 6 dismissal of the appeal. The above decision of the Supreme Court clearly spelt out that a decree of the trial court would get merged in the appellate court's decree even when the appeal is dismissed as barred by limitation or on any other preliminary grounds. In Keval Ram v. Ram Lubhai ((1987) 2 SCC 344), the proposition so laid down was reiterated, wherein it has been held thus:
"It is well settled that when a decree of the trial court is either confirmed, modified or reversed by the appellate decree, except when the decree is passed without notice to the parties, the trial court decree gets merged in the appellate decree."
However, subsequent judicial pronouncements rendered by the apex court on the question expressed conflicting views as regards the merger of the decree passed by the trial court with that in the appeal when it has been dismissed as time barred. In Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)), the apex court considering the question when a decree become enforceable held that when an appeal is dismissed as time barred or for default, it will not amount to a decree and it CRP.785/07 7 will have no effect on the decree passed by the trial court. When the appellate court decree does not amount to a decree, it was further held, there would be no suspension of the period of limitation and the lower court decree continues to be enforceable. The above principle was reiterated by the apex court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), wherein the ambit and scope of merger of decree was examined. Approving the view expressed in Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)), in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), a bench consisting of three Judges, held that "when an appeal is dismissed on the ground that the delay in filing the same is not condoned, the doctrine of merger shall not apply." However, later the apex court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), that too a bench consisting of three judges, held that the dismissal of an appeal for default as time barred by limitation cannot be treated on par with non filing of an appeal or withdrawal of an appeal. The apex court in the above decision has held thus:
"An appeal registered under Rule 9 of Order 41 of CPC had to be disposed of according to CRP.785/07 8 law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal."
Several earlier judicial pronouncements rendered by the apex court and also various High Courts were considered in the above decision. However, it is noticed that the decision rendered in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), by a bench of three judges on the question involved was not brought to the notice of the apex court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)). The question whether a doctrine of merger applied when an appeal or revision was dismissed on the ground of delay arose for consideration before the apex court again in State of Kerala and another v.
Kondottyparamban Moosa and others (I.L.R. 2008 (4) Kerala 11), wherein the apex court followed the principle laid down in the Chandi Prasad v. Jagdish Prasad (2004 (3) CRP.785/07 9 KLT 654 (SC)) to hold that doctrine of merger would apply only in a case when a higher forum decides an appeal or revision on merits, and not when an appeal or revision is dismissed on the ground of delay without entering into the merits of the case.
5. The apex court in State of Kerala and another v. Kondottyparamban Moosa and others (ILR 2008 (4) Kerala 11) adverting to and following the principles laid down in Smt.S.Kalawathi v. Durga Prasad and another (AIR 1975 SC 1272), Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat ((1969) 2 SCC 74) and Kunhayammed and others v. State of Kerala and another ((2000) 6 SCC 359) and placing absolute reliance on the conclusion formed over the vexed question by the apex court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) reiterated the principle evolved in that decision that when "an appeal is dismissed on the ground that a delay in filing the same is not condoned, the doctrine of merger shall not apply" declared in unmistakable terms that the doctrine of merger would only apply in a case when a higher forum CRP.785/07 10 entertains an appeal or revision and passed an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. However, it is noticed when a bench consisting of two Judges rendered the above decision following the decision rendered by a bench consisting of three Judges namely Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), unfortunately, the later decision rendered by another bench consisting of three Judges referred to earlier namely Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)) was not brought to the notice of the court, and so much so, the conflicting views expressed in that decision was not taken note of.
6. What is noticeable from a survey of judicial pronouncements on the question involved is that two decisions of coequal bench, both consisting of three Judges, have expressed conflicting views in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), with a later decision of the apex court consisting of two Judges CRP.785/07 11 approving and following, rather placing unreserved reliance on the earlier of the two conflicting decisions rendered by the apex court. So much so, apparently an insurmountable task eluding an easy way out to unravel a legal riddle is presented before this Court. The decisions of the apex court laying down principles of law on disputed questions like the one presented have the force of law as mandated under Article 141 of the Constitution of India, and so much so, when conflicting views are expressed by coequal benches in respect to the same matter which one has to be followed and what are the principles, if any, applicable to such a case, I find is not an easy task as it appears that no binding precedent thereof has been evolved so far. Prince Alexander of Macedonia with a swift stroke of his sharp sword could cut away to two pieces the 'Gordian Knot' in the temple of Zeus Basilica in Gordium which continued as a puzzle relic impossible of being loosened apart, but when the unenviable task of conflicting judicial pronouncements by the apex court of two equal benches is placed before this Court no such solution is possible and the gordian knot thereof has to be loosened one string after another to resolve that vexed problem. CRP.785/07 12
7. Faced with the task of choosing one among the two Judges of the Supreme Court expressing conflicting views a Single Judge of High Court of Rajasthan in M/s.Boards & Boards Pvt. Ltd. v. M/s.Himalaya Paper (Machinery) Pvt. Ltd., New Delhi (AIR 1990 Rajasthan 120) has expressed the view in such a situation "it is left open to the Judge to apply the judgment which in the facts and circumstances of the case, appeals to the conscience of the Court". However, no reasons are stated in the judgment to support the view so formed enabling the High Court to choose one of the two conflicting judgments purely on the subjective satisfaction of the court but not depending on an objective analysis. In Indo-Swiss Time Ltd. v. Umarao (AIR 1981 Punjab & Haryana 213) and in Bholanath Karmakar and others v. Madanmohan Karmakar and others (AIR 1988 Calcutta
1) examining the precedential value to be given to the conflicting judgments of coequal benches of the Supreme Court it has been stated in such a situation, the High Court is not bound to follow the one which is later in point of time, but may follow the one which according to it, is better in law. In the former decision, while observing that "judgments of the CRP.785/07 13 Supreme Court, which cannot stand together, present a serious problem to the High Courts and the Subordinate Courts", a conclusion is reached that "in such circumstances, the correct thing is to follow the judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgment." In the later decision rendered by the Calcutta High Court relying on the views expressed as aforesaid by the Punjab and Haryana High Court and also canvassing support from Smritis and what is stated to have been declared by Narada, the jurist in Hindu Mythology, which reads "Dharmashastra Virodhe to Yuktiyukta Vidhe Smrita", that is, when the Dharmashastras or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed, the Division Bench of the Calcutta High Court has held that where there are conflicting decisions of the Supreme Court rendered by benches of equal strength, the High Court, in theory, is not bound by none, but may follow the one which, according to it, is better in point of law. A Division Bench of the High Court of Madhya Pradesh in Smt.Kalabhai Choubey and others v. Rajabahadur Yadav and another CRP.785/07 14 (AIR 2002 MP 8) has also expressed more or less the similar view that where there is direct conflict between the decisions of coequal benches of Supreme Court, the High Court has to follow the judgment which appears to state the law more elaborately and more accurately and in conformity with the Statute in respect of which the decisions were rendered. The Division Bench has gone further and expressed a view thus:
"Both the views of the Supreme Court cannot be binding on the court below". In such a situation, the choice, however difficult it may be, has to be made. I find it unable to agree with and follow the proposition so formed in the decisions of the Punjab and Haryana High Court, High Court of Calcutta and also High Court of Madhya Pradesh. In the decisions referred to above, it is held that the High Court is not bound or has a choice to select one of the two conflicting judgments rendered by coequal benches of the apex court on its assessment of the reasonableness and accuracy of one or the other judgment with reference to the law laid down. It is not possible for the High Court to sit in judgment nor is it permissible to hold as to which of the two decisions of the apex court expressing the conflicting views "................... state the law more elaborately and more accurately and in CRP.785/07 15 conformity with the Statute" and then make the difficult choice of which one of them has to be followed. The normal governing principle in accordance with the propriety and judicial discipline is to follow the later of the two decisions of the apex court when two judgments expressing different views are rendered by benches of equal strength. A Division Bench of this Court in Deputy Commissioner v. Anandan (1987 (1) KLT 192) has held that when "both the decisions have been rendered by benches of equal strength, High Court is bound to follow the later decision." Similar view is taken by the Full Bench of the Allahabad High Court in Gopal Krishna Indley v. 5th Additional District Judge, Kanpur and others (AIR 1981 Allahabad
300) and also by the High Court of Gujarat that too by a Full Bench in Gujarat Housing Board, Ahmedabad v.
Nagajibhai Laxmanbhai and others (AIR 1986 Gujarat
81). So much so, if there are conflicting judgments of the Supreme Court on the same question of law, the High Court has to follow the later and it cannot have a choice of selection by examining the reasonableness and acceptance of one among the two judgments on its assessment of its CRP.785/07 16 reasonableness and accuracy of the law stated in such judgments.
8. Has the High Court to follow blindly the later decision of the two conflicting judgments expressing different perception on a question of law both rendered by equal benches and to follow it as a binding precedent is the next question to be considered. Necessarily and inevitably, when conflicting views are expressed in two different judgments by coequal benches, before following the later decision, a duty is cast upon the High Court whether that decision is a 'law declared' under Article 141 of the Constitution of India. In State of U.P. and another v. Synthetics and Chemicals Ltd. And another ((1991) 4 SCC 139) explaining the rule of sub-silentio and also adverting to the guidelines given in Jaisri Sahu v. Rajdewan Dubey (AIR 1962 SC 83), which point out the procedure to be followed when conflicting decisions of coequal benches of the High Court arise for solution, the apex court has held that a decision "which is not expressed and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared CRP.785/07 17 to have a binding effect as is contemplated under Article 141 of the Constitution of India." The rule of sub-silentio as explained by Salmond on Jurisprudence which reads "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edition, Page 153) has been relied upon by the apex court to hold that a recourse to this principle is essential for relieving from injustice perpetrated by unjust precedents. It has been further held in the above decision that any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. In Arnit Das v. State of Bihar (2000 (4) Supreme 186), the rule of sub-silentio has been explained stating that "a decision not expressed, not accompanied by reason and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution of India." In the technical sense, the rule of sub-silentio, it is stated, means when a particular point of law was not consciously determined. How CRP.785/07 18 far the rule of sub-silentio is applicable to one or other of the conflicting judgments of the apex court of coequal benches can be one of the tests to examine which of the two judgments has to be followed by the High Court to the situations presented before it for consideration. Similarly, it is imperative that the factual context of a decision must be kept in mind before reliance is placed on any judgment. The apex court in Union of India v. Dhanvanti Devi ((1996) 6 SCC
44) held that it is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution of India and in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts in the case in which the decision was given and what was the point which has to be decided. It has been further observed that no judgment can be read as if it is a statute. In the context, it is appropriate and proper to refer to the decision rendered by the apex court in Haryana Financial Corporation v. Jagdamba Oil Mills ((2002) 3 SCC 496), wherein, the apex court has expressed a view in unmistakable terms that factual context of a decision must be kept in mind before reliance is placed on any judgment. In the above CRP.785/07 19 decision, the apex court has observed thus: ".............. courts should not place reliance on the decisions without discussing as to how the situation fits in with the factual situation of the decision of which reliance is placed." Observations of court are not to be read as Euclids theorems nor as provisions of the statute. The observations must be read in the context in which they appear. Judgments of courts are not to be considered as statutes to interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, and not interpret judgment. They interpret words of statutes, their words are not to be interpreted as statutes. The above principle laid down by the apex court can be a second test to examine which of the conflicting judgments having due regard to the precedential value of the later judgment to be followed is applicable to the fact situation presented before the High Court. In doing so, the well settled theory of precedent has considerable impact and decisive consideration in the evaluation as to the decision applicable. Every decision contains three basic postulates (1) findings of material facts, direct and inferential (2) statements of the principles of law CRP.785/07 20 applicable to the legal problems disclosed by facts (3) judgment based on the combined effect of the above. The essence of their decision is its ratio and not every observations found therein. The decision is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law, and that alone is binding.
9. The task at hand demand a closer study with reference to the contextual facts presented in which conflicting judgments were rendered by coequal benches of the apex court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) and Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)) to examine what was the dispute which arose for consideration and the point of law which had been decided in the respective cases. In Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) the facts involved in that case demonstrate that the only question that arose for consideration before the apex court was the question of merger when an appeal is dismissed for default CRP.785/07 21 with the decree passed by the lower court. So much so, the decision was rendered in a case in which the question of enforceability of a decree as to when it becomes enforceable with reference to the dismissal of an appeal for default was directly and substantially involved, and in that context, the apex court rendered the decision that when an appeal is dismissed on the ground of delay in filing the same on the ground that delay in filing it was not condoned, the doctrine of merger shall not apply. In the above decision, after a survey of all the previous decisions expressing conflicting views over the question, the apex court approved the view taken in Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)), in which also the issue under consideration was directly and substantially involved, and that alone was considered, that the rejection of an application for condonation of delay in a time barred appeal leading to dismissal of appeal does not amount to a decree and has no effect on the decree passed by the court below. It is noticed that the above decision in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) was rendered by the apex court consisting a bench of three Judges on 1.10.2004. So far as the other decision of the apex court CRP.785/07 22 expressing a conflicting view namely Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)) that too by a bench of three Judges, with the decision rendered later in a point of time on 4th November, 2004, it is seen, the facts involved in that case related to the entertainability of an application under Order IX Rule 13 of CPC to set aside an ex parte decree, with reference to the Explanation to that Rule after dismissal of an appeal against that ex parte decree on rejection of a petition to condone the delay in preferring that appeal. Explanation added to Order IX Rule 13 CPC under the 1976 amendment to the Code of Civil Procedure interdicted a defendant against whom an ex parte decree had been passed from prosecuting an application under that Rule for setting aside the ex parte decree in case any appeal preferred by him against that ex parte decree had been dismissed on any ground other than its withdrawal. It was in that contextual background with respect to the entertainability of an application under Order IX Rule 13 of CPC after dismissal of a time barred appeal on rejection of the petition to condone delay it was held that such dismissal is nevertheless a decision in the appeal. Since in the above decision, the principle of merger by dismissal of a time barred CRP.785/07 23 appeal on rejection of the petition to condone delay in its presentation was considered with reference to the judicial pronouncements rendered earlier but not of Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), the rule of sub-silentio may apply while examining which of the two conflicting judgments has application to the facts of the case. Similarly, it is noticed that while in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) approved and reiterated the principles laid down in Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)), in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), it was observed that the aforesaid decision was rendered in the context of Article 136 of the Limitation Act, 1963 in the light of the departure made from the provisions in Article 182 of the Limitation Act, 1908. It was also pointed out that the view expressed by the two Judges bench in the decision cannot be accepted as laying down the correct law on the question since the earlier decisions in Messrs Mela Ram and Sons v. The Commissioner of Income Tax, Punjab (1956 SCR 166) and Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) striking a different view were not brought to the notice CRP.785/07 24 of that court. In the context, it is to be noted that as already indicated the decision in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) which upheld Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)) had not been brought to the notice of the court which rendered Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), which expressed a different view on the above decision. All the same, the analysis of the two decisions expressing the conflicting views on the question of law demonstrate that the earlier decision Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)) was rendered in a case in which the question of enforceability of a decree as to when it becomes enforceable with reference to the dismissal of an appeal as time barred on rejection of a petition to condone its delay was directly and substantially involved, and in that context, approving a bench of two Judges decision in Ratnasingh v. Vijaysingh (2001 (1) KLT 327 (SC)) in which also the question was directly and substantially involved, it was held that when an appeal is dismissed on the ground that delay in filing it is not condoned, the doctrine of merger will not apply and in the above decision, all the previous decisions which CRP.785/07 25 expressed diametrically opposite views including the decisions relied in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)) namely Messrs Mela Ram and Sons v. The Commissioner of Income Tax, Punjab (1956 SCR
166) and Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) were also taken notice of to reach the conclusion that the dismissal of an appliction for condonation of delay leading to the rejection of the appeal has no effect on the decree passed by the lower court. However, in the later decision in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)) the contextual facts involved reveal that though there was consideration of the question of rejection of a condonation petition in the dismissal of an appeal and a decision was formed after surveying of various judicial pronouncements in the matter to hold that it was nevertheless a decision in the appeal the issue involved was the ambit and scope of Explanation of Order IX Rule 13 of CPC which interdict the entertainability of an application under that Rule for setting aside the ex pate decree once an appeal preferred from that decree had been dismissed, otherwise than on its withdrawal, including as barred by limitation. CRP.785/07 26 Whether in such a case there is merger of the decree in the appeal with that of the decree of the court below on rejection of a petition to condone the delay in filing the appeal, and the date from which the decree becomes enforceable are not questions directly and substantially involved or considered in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)). Scope and ambit of the Explanation of Order IX Rule 13 of CPC on the entertainability of application under that Rule for setting aside an ex parte decree with reference to an application preferred against that decree by the same applicant and the dismissal of the appeal on any grounds otherwise than its withdrawal was directly and substantially involved, and that alone and not the date from which a decree becomes enforceable within the meaning of Article 136 of the Limitation Act, 1963. In Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), the issue of merger of the decree on the dismissal of an appeal as time barred and the date of enforceability of the decree for execution were not even remotely involved for consideration. When that be so, the decision rendered by the apex court in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654 (SC)), in which the CRP.785/07 27 question posed for consideration was directly involved and the law and principle applicable thereof was laid down and that being later followed in State of Kerala and another v. Kondottyparamban Moosa and others (ILR 2008 (4) Kerala 11) by a bench of two Judges of the apex court may have more decisive force and command, and the principle of stare decisis will require this Court to apply the law thereunder though a different view is expressed in another decision but in different contextual facts and in relation to other questions not directly pertaining to the question of the date of enforceability of the decree with reference to the appeal dismissed as time barred rejecting the application for condoning its delay.
10. Having regard to the need for the formulation of an authoritative opinion laying down the correct principle to be followed when two conflicting decisions of the apex court, both rendered by coequal benches, are found applicable, and since there appears to be no binding decision by this High Court on that question, it is proper and appropriate, in my view, that the question be considered by a Division Bench of CRP.785/07 28 this High Court.
11. The question emerging for reference is as follows:
Where the judgments of the Supreme Court rendered by coequal benches express conflicting principles of law, which cannot stand together and, thus, present a serious problem to the High Courts and Subordinate Courts, what are the principles to be followed in choosing one or other of the conflicting judgments by the High Court when in a case the applicability of the conflicting decisions rendered by the apex court has decisive impact in its disposal.
Registry is directed to place the matter before the Honourable the Chief Justice for reference to a Division Bench to render an authoritative pronouncement on the above question.
S.S.SATHEESACHANDRAN JUDGE prp