Kerala High Court
P.T. Xavier vs Lucy V. Papaly on 15 November, 2001
Equivalent citations: AIR 2002 KERALA 146, ILR(KER) 2002 (1) KER 372, (2002) 1 KER LJ 40, (2002) 1 RENCR 160
Author: P.R. Raman
Bench: P.R. Raman
ORDER P.R. Raman, J.
1. This revision petition is directed against the order dated 16-7-2001 in E.P. No. 226 of 2000 in O.S. No. 283 of 1984 on the file of the Principal Munsiffs Court, Kochi. The judgment-debtor is the revision-petitioner herein. A decree for mandatory injunction was granted by the trial Court on 30-5-1994. Against the said decree, appeal was preferred by the judgment-debtor as A. S. No. 55 of 1994 before the District Court which was also dismissed. There was a Second Appeal, S.A. No. 830 of 1997 before this Court which was also dismissed by this Court on 9-7-1999. As the defendant did not comply with the decree for removing the structures put up by him, those structures had to be removed for which an Execution Petition was filed.
2. The judgment-debtor filed objection contending that the petition is not maintainable as it was barred by taw of limitation. It is his case that on two earlier occasions, the decree-holder had filed Execution Petitions and both were dismissed for default. It is the admitted case that if the period of limitation is calculated from the date of the decree of the trial Court, the present Execution Petition will be barred by the law of limitation. However, if the period is reckoned from the date of decree of the Second Appeal, then the Execution Petition is within time. The trial Court held that since the Second Appeal was disposed of on 9-7-1999 and the Execution Petition being filed within three years from 9-7-1999, the petition is within time and hence the objection was overruled. It is that order which is under challenge in this revision petition.
3. The learned counsel appearing for the petitioner has contended that as the decree was passed in this case by the trial Court on 30-5-1994 and the present Execution Petition having been filed only in the year 2000, the same is not filed within the time prescribed by law, namely, within three years from the date of the decree. According to him, as per Article 135 of the Limitation Act, 1963, the period of limitation prescribed is three years and the time begins to run as per column three of Article 135, from the date of the decree or where a date is fixed for performance, such date. Hence, according to counsel, when the trial Court decree is merely confirmed in appeal or Second Appeal, the decree sought to be executed is only the decree passed by the trial Court and in the absence of any stay of execution of the decree, time will begin to run from the date on which the decree was passed by the trial Court. In this connection, he also drew my attention to Section 15(1) of the Limitation Act (hereinafter referred to as "the Act") to contend that what period could be excluded having been provided specifically under Section 15(1) while computing the period of limitation the time will start running from the original decree unless otherwise specified. It is his case that as per Section 15(1) of the Act in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, alone shall be excluded. He submits that when the period of stay has been specifically excluded as per Section 15(1) of the Act, the position is that when once there is no stay of execution of the decree granted by an appellate Court, then automatically the period will begin to run from the date of the original decree. According to him, Section 15(1) of the Act will become redundant if it is held that the period begins to run only from the date of the appellate Court decree.
4. According to the learned counsel appearing for the respondent, when the decree has been appealed against in exercise of a right conferred by the statute, the matter becomes final only when the appeal is disposed of and it is settled principle that when the appeal or Second Appeal is disposed of, whether dismissed or allowed, the decree that is executable is the decree of the appellate Court and not that of the trial Court. According to the counsel, whether the appeal is dismissed confirming the decree and judgment of the trial Court or has reversed, there is no change in the position. Once an appeal is preferred and notice ordered and both sides are heard on merits and the appeal or Second Appeal, as the case may be, is dismissed, the decree executable is that of the appellate Court. Insofar as Article 135 of the Limitation Act prescribes the period of three years from the date of the decree, without mentioning or qualifying the decree, counsel argues, time has to be calculated from the date of the executable decree. He also relied on the decision of this Court in Kannan v. Narayani, 1980 KLT 9 (AIR 1980 Kerala 76) (FB), Kamalamma v. Trivandrum Permanent Bank. 1986 KLT 1181 : (AIR 1987 Kerala 163) and Kun-hayamrned v. State of Kerala, AIR 2000 SC 2587 in support of his contention.
5. In Kannan v. Narayani, 1980 KLT 9 (AIR 1980 Kerala 76) a Full Bench of this Court considered the question as to whether a decree of an original Court under appeal merges in appellate decree. The question arose in a context where a correction to amend the decree had to be filed. After referring to Section 152. C.P.C. and the power of the Court to correct or amend the decree, it was held that there was inherent power in the Court to correct a clerical mistake or an error arising from an omission and to vary its judgment so as to give effect to its meaning and intention. But when an appeal is preferred from an original decree and the appellate Court has dealt with the matter and dismissed the appeal confirming the decree of the trial Court, a question arose as to whether a correction petition has to be filed before the trial Court or the appellate Court. It was in this context that the question of merger arose for consideration in that case. After referring to the judgment of the Supreme court in U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 : (1955 Cri LJ 1410) it was held thus : (at Page 649 of AIR) "A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would, therefore, be a judgment and such judgment when pronounced would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below."
The said decision of the Honourable Supreme Court was referred to in the later decision in Gojer Brothers v. Ratan Lal, AIR 1974 SC 1380, where the Supreme Court held thus : (at page 1384) "An application of this very principle yields the result that if the Court of Appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate Court is the only decree that can be amended."
6. After referring to the above two decisions of the Supreme Court, the Full Bench did not agree with the earlier Division Bench judgment in Malayalam Plantations Ltd. v. Varkey Chacko, 1969 KLT 710. In the subsequent decision in Kamalamma v. Trivandrum Permanent Bank, 1986 KLT 1181 : (AIR 1987 Kerala 163), a learned single Judge of this Court specifically considered Article 136 of the Limitation Act and the question as to whether in a decree of the trial Court confirmed in appeal the starting point of limitation for execution is the date of disposal of the appeal. The facts of the above case is similar to the facts of the present case. That was a suit for recovery of money which was decreed by the trial Court. However, the plaintiff filed an appeal as the decree was enforceable only against some of the defendants. In appeal, the trial Court decree was confirmed. Similar argument was raised there also that though Execution Petition was filed, it was not prosecuted and after the disposal of the appeal, another Execution Petition was filed and the contention was that if the period reckoned from the original decree, the Execution Petition was barred by law or limitation. Referring to Article 136 in the new Act which corresponds to Article 182 in the old Act, it was found that the new Article makes serious deviation from the old Article 182 providing for period of limitation, in that it provides that the time will begin to run from the moment the decree or order becomes enforceable. The Court went into the question as to which is the decree that can be executed, whether it is the trial Court decree or the appellate Court decree and if the appeal itself is disposed of whether the trial Court decree subsists for execution.
7. Following the decisions in Gojer Brothers v. Ratan Lal, AIR 1974 SC 1380, Jowad Hussain v. Gendan Singh, AIR 1926 PC 93 and also the decision in I.T. Commissioner v. Amritlal Bhogilal & Co. AIR 1958 SC 868, the Court took the view that as a result of the confirmation or affirmance of the decision of the Tribunal by the Appellate Authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. It was also held that consequence of the confirmation or affirmance of the decision of the inferior Court by the superior Court, is to render the decision of the superior Court alone to subsist and to be operative and capable of enforcement. It is, therefore, held that the period starts from the date of the appellate Court decree.
8. The learned counsel for the petitioner has sought to draw distinction between the above case and the present one in that here the appeal was filed by the defendant and hence, according to him, when the appeal is filed by the plaintiff there is change in the principle of merger. I cannot agree. Whether the appeal was filed by the plaintiff or the defendant has no relevance in deciding the question of merger. It is the final decree which becomes executable. In Kunhayammed v. State of Kerala, AIR 2000 SC 2587, the Apex Court drew a distinction between dismissal of a Special Leave Petition which is a discretionary remedy and disposal of an appeal. Even though in the dismissal of the Special Leave Petition at the admission stage, the question of the principle of merger does not arise, the Apex Court held that once a decision is rendered in the appeal, the decree of the High Court merges with that of the Supreme Court. The Supreme Court further held thus (at Page 2592) :
"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior Court, Tribunal or Authority was subjected to a remedy available under the law before a supreme forum then, though the decree or order under challenge continues to be effective and binding nevertheless its finality is put in jeopardy. Once 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 Authority below."
9. In view of the authoritative pronouncement of the Supreme Court and the Full Bench decision of this Court, it is therefore, to be held that when the decree is appealed against the enforceable decree is that of the appellate Court whether the appellate Court dismisses or varies the judgment of the Court below. Even though the trial Court decree may be enforceable in the absence of any interim order of stay passed by the appellate Court, that by itself will not show that the period of limitation for executing the decree starts from the date of the trial Court decree because applying the principle of merger, the decree that is executable is that of the appellate Court. So viewed, the Court below was perfectly right in holding that the petition was not barred by limitation and that the same was filed within time.
In the result, the C.R.P. is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.