Punjab-Haryana High Court
Chhota Ram And Ors. vs Naginder Singh And Ors. on 29 May, 1998
Equivalent citations: (2000)124PLR720
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Chhota Ram and others (hereinafter described as 'the petitioners') directed against the order passed by the learned Civil Judge, Sunam dated 24.3.1998. By virtue of the impugned order the learned trial Court dismissed the objections filed by the petitioners and directed the warrants of possession to be issued.
2. The relevant facts are the Maya Devi had executed a mortgage deed in favour of Tara Chand. A civil suit was filed by Naginder Singh. The said suit had been decreed. The decree was passed on 18.1.1985. Petitioners preferred an appeal against this decree and judgment which was dismissed on 12.10.1989. During the pendency of the appeal, there was no stay of dispossession. The respondents on 19.8.1997 preferred an execution application seeking possession. The petitioners had preferred objections alleging that the decree is non- executable because the application was filed after 12 years of the judgment and decree of the Trial Court and the same was executable because there was no stay granted during the course of appeal. The learned Civil Judge, Sunam vide the impugned order held that the execution application was well within time and dismissed the objections. The other objections so raised which also did not find favour with the learned trial Court were not pressed in this Court. Therefore, the short question that was agitated and requires consideration is as to if the execution application was within time or not ? The facts are not in controversy as mentioned above that the execution application had been filed after 12 years of the judgment and decree of the trial Court but within 12 years after dismissal of the appeal. It is not in controversy that during the pendency of the appeal, there was no stay in the execution. It is in this background that the above said controversy arises.
3. To appreciate the said controversy, one can conveniently refer to Article 182 of the Limitation Act, 1908 before it was repealed. Under Article 182 of the Limitation Act for execution of decree or order of a civil Court for which there was no provision in Article 183, period of limitation provided was 3 years and the said period was to run from:
"(1) the date of the decree or order, or (2) (Where there has been an appeal), the date of final decree or order of the Appellate Court, or the withdrawal of the appeal, or (3).................."
4. In the Limitation Act, 1963, Article 136 deals with the same and reads:
Description of Period of Time from which period
suit Limitation begins to run
"136. For the Twelve Year (When) the decree or order
execution of any becomes enforceable or where the
decree (other than decree or any subsequent order
function or order directs any payment of money or
a mandatory the delivery of any property to
injunction) or order be made at a certain date or at
of any civil Court. recurring periods when default in
making the payment or delivery in
respect of which execution is
sought, takes place :
Provided that an application for
the enforcement or execution of a
decree granting a perpetual
injunctions shall not be subject to
any period of limitation."
5. The argument of the learned counsel for the petitioners was based on the fact that there has been change in the law which cannot be ignored. According to him the decree becomes enforceable, the moment it is passed. If it is not stayed in appeal or in revision as the case may be, the period of limitation would continue to run. To buttress his argument, he referred to order 41, Rule 5 CPC which further provides that merely filing of the appeal does not tantamount to automatic stay in the execution. Thus, as per him the decree became enforceable when it was passed by the trial Court and the execution application filed after 12 years of the judgment and the decree of the trial Court is barred by time.
6. On the contrary learned counsel for the respondents contended that the decree and judgment of the trial Court merges into that of the Appellate Court and, therefore, it would become enforceable only from the date the appeal decided. After all according to him, it is the judgment of the Appellate Court which prevails.
7. In this regard reference with advantage can well be made to certain precedents on the subject. In the case of S. Kharak Singh v. Harbhajan Singh, 1978 Current Law Journal 470 the execution application was filed within time from the date, the appeal was decided. This Court held that the same was within time. The findings recorded in this regard in paragraph 5 are:
"The second question that requires determination is whether the execution application is within time. It has been argued by the learned counsel for the petitioner that the decree-holder is executing the decree of the trial Court which was passed on October 31, 1963. The learned counsel submits that the decree could be executed within three years, as the limitation of three years had been provided by the Limitation Act, 1908. I regret my inability to accept the contention of the learned counsel. It is not disputed that an appeal was filed against the judgment and decree dated October 31, 1963 to the District Judge, Hoshiarpur, which was dismissed by him on March 12, 1964. This is an established principle of law that the decree of the trial Court merges in that of the appellate Court and after the passing of the decree by the appellate Court it is the decree of that Court which is executed. The decree-holder is entitled to take limitation for execution from the date of decree of the appellate Court. On January 1, 1964, Indian Limitation Act, 1908 was repealed by the Limitation Act, 1963. By virtue of the Limitation Act of 1963 a period of 12 years was prescribed for executing the decree. Thus the decree-holder became entitled to execute his decree till March, 1975. The present execution application was filed by him somewhere in 1973. The application is, therefore, clearly within limitation. The contention of the learned counsel for the petitioner is, therefore, rejected."
Similarly in the case of Lakshmi Narayan Guin and Ors. v. Niranjan Modak, A.I.R. 1985 S.C. 111 the same question about merger of the judgment of the trial Court with that of the appellate Court was considered and it was held that it is the decree of the appellate Court which rules. The Supreme Court in paragraph 7 held:
"It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in. the appellate decree, and it is the appellate decree which rules."
A Full Bench of the Patna High Court in the case or Jokhan Rai v. Baikunth Singh, A.I.R. 1987 Patna 133 considered the same. The question for consideration was as to whether the period of limitation would start running from the date the decree of the trial Court is passed or that of the Appellate Court. The answer provided by the Full Bench was that it would start running from the date the judgment and decree is passed by the Appellate Court. In paragraph 7 while discussing Article 136 of the Limitation Act, the Court held:
"It seems to me that the question here is so well covered by principle language of the statute; and binding precedent; that it would be somewhat wasteful to launch on too elaborate a dissertation. Nevertheless the salient and axiomatic aspects of the issue may be briefly recapitulated. Perhaps that first meets the eye is the fact that the language of Article 136 talks of a decree and its enforceability. It does not limit or constrict itself to the original decree alone. The words employed are "any decree" and "when the order becomes enforceable". To read Article 136 as confined to the decree of the trial Court or the original decree alone would be doing violence to the language of the statute by unceremoniously inserting the words "trial Court" or "original" along with the words "decree or order" wherever used in the said article."
Thereafter the conclusions were further drawn in paragraph 8 which reads:
"Yet another matter which is axiomatic in our civil jurisprudence is that an appeal under the Code of Civil Procedure is a continuation of the suit. Now once this unchallengeable dictum is accepted, it necessarily follows that the moment an appeal is filed, the finality of the judgment and decree is automatically put in a flux and the appeal must be taken as part and parcel of the continuing trial. In essence where an appeal has been preferred, the suit is disposed of truly and finally by the appellate decree and not by the original one."
The Bombay High Court in the case of Ramkrishna Bajirao Gotmare v. Kanhaiyalal Tribhuwanlal Shah, A.I.R. 1990 Bombay 361 also on the same lines held that decree of the Appellate court supersedes the original decree and as per the doctrine of nerger, the limitation would start running from the date the appellate Court decides the appeal. The said conclusion of the Court can well be reproduced from paragraph 6:
"Such results would ensue even on the effect of Order 41, Rule 35 of the Code which deals with the decree in appeal. Even if there is any doubt on the question its benefit must go the decree-holder from whom obtaining a decree is generally a difficult task and realizing the fruits of the decree a distant dream. In this connection useful reference may be made to the case of Anandilal v. Ram Narayan, A.I.R. 1984 S.C. 1383, wherein in the context of Section 48 of the Code, it is observed (at p.1387 of A.I.R)."
"It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible."
The Rajasthan High Court in the case of Sayed Abdul Rauf v. Nurul Hussain and Ors., A.I.R. 1992 Rajasthan 3 was concerned with a similar question. Herein no stay had been granted in appeal. The question was identical as to if it would be taken that decree became enforceable from the judgment of the lower Court or when the appeal was dismissed. Putting into service the doctrine of merger it was held that execution is within time. It was held that merger takes place irrespective of the fact that the Appellate Court affirms, modifies or reverses the judgment of the trial Court. Same view was echoed in another Single Bench judgment of this Court in the case of Ramji Dass v. Tilak Raj, (1988-2) Rev.L.R. 414. A decree for possession by way of pre-emption was passed on 4.10.1968. The appeal was dismissed on 19.3.1970. The respondent filed an execution application on 28.3.1981. It was held that the period of limitation would be counted when the Appellate Court dismissed the appeal and it was within time. The view point of the Andhra Pradesh High Court in the case of Nalluri Veeraju v. Sri Kanchi Kamakshammavri Temple, 1997(1) Civil Court Cases 644 was the same. It was held that when there is an appeal, the period of limitation is to be reckoned from the date of the appellate decree and not from the date of the original decree. It would not run earlier than that.
8. On behalf of the petitioners strong reliance was placed on the judgment of learned Single Judge of this Court in the case of Diwan Singh v. Om Parkash and Ors., (1998-2)119 P.L.R. 694. The view point of the learned Single Judge was to the contrary. It was held that if there is no stay granted during the course of appeal, the decree would become enforceable as passed by the learned trial Court. Ordinarily one would not have persisted with difference of opinion with the Single Judges of this Court which have already been noted above. The judicial discipline would require that matter be referred to a larger Bench, but for the decision of the Supreme Court that has already been noticed above. The Supreme Court categorically held that it is the judgment of the Appellate Court which prevails and the decree and judgment of the trial Court merges into appeal. Obviously, it would become enforceable from the date the appeal is dismissed. With respect, therefore, it becomes difficult to subscribe to the view in the case of Diwan Singh v. Om Parkash and others (supra).
9. After pondering thus for some of the precedents, it is clear that period of limitation would be reckoned from the date, the appeal was dismissed. Even if there was no stay granted during the course of the appeal, the decree would be enforceable for purpose of limitation as passed by the Appellate Court. The doctrine of merger permits us to say so. The moment Appellate Court decree comes into being, the original judgment and decree loses its independent entity. Consequently, the learned trial Court, therefore, rightly held that it was within time. There is no ground to interfere in the order of the trial Court.
10. For these reasons, the revision petition being without merit must fail and is dismissed.