Calcutta High Court
Ramnath Jhunjhunwala vs Martin Burn Limited & Ors on 9 January, 2024
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
OD-14
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA GA/4/2023
EC/220/2014
CS/3/2000
RAMNATH JHUNJHUNWALA
VS
MARTIN BURN LIMITED & ORS.
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 9th January, 2024.
Appearance:
Mr. Shyamal Sarkar, Adv.
Mr. Aniruddha Mitra, Adv.
Mr. Pramod Bagaria, Adv.
Mr. Dhillon Sengupta, Adv.
Mr. H. Saraf, Adv.
...for petitioner.
Mr. Nirmalya Dasgupta, Adv.
Mr. R.L. Mitra, Adv.
Ms. P. Dhar, Adv.
...for judgment debtor
The Court:
1.This is an application by the judgment debtors seeking dismissal of the execution application.
2. The primary ground urged by the judgment-debtors is that the decree dated 21st May, 2002 stood modified by an order dated 11th July, 2005 whereby the time to complete the subject building had been extended. Thereafter, being aggrieved by the order dated 11th July, 2005, the decree-holder had preferred an appeal which was disposed 2 of without interfering with the order dated 11th July, 2005. In such circumstances, the decree dated 21st May, 2002 having merged with the order dated 16th October, 2007 the instant application for execution of the decree dated 21st May, 2002 is not maintainable. In support of their contentions, reliance has been placed on Gojer Borther Pvt. Ltd. vs. Ratan Lal Singh (1974) 2 SCC 453 and Chandi Prasad & Ors vs. Jagdish Prasad & Ors. (2004) 8 SCC 724.
3. On behalf of the decree-holder, it is contended that the application is misconceived and meritless. The execution application was filed in the year 2014 and the judgment-debtors had been contesting the same throughout. There are reciprocal obligations contained in the decree and the judgment-debtors have failed to honour and comply with their obligations. In any event, the decree sought to be executed has not been interfered and there is no question of executing the order of the Division Bench dated 16 October, 2007. In support of such submissions, the decree-holder relies on Kunhayammed & Ors. vs. State of Kerala & Anr. (2000) 6 SCC 359.
4. It is now well-settled that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on the principle of propriety in the hierarchy of the justice delivery system. The logic underlying the doctrine of the merger is that there cannot be more than one decree 3 governing the same subject matter at a given point of time. The nature of jurisdiction exercised by a superior forum and the content of the subject matter of challenge and the ultimate decision passed by the superior forum has to be considered in deciding whether there is a question of merger or not. (Gojer Borther Pvt. Ltd. vs. Ratan Lal Singh (1974) 2 SCC 453).
5. In Kunhayammed (Supra) it has been held as follows:
"The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by the superior authority, passed in an appeal or revision there is fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute." (Para 9) "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum Vol LVII PP 1067-
68) Para 42."
6. Admittedly, the decree dated 21st May, 2022 was passed on the basis of a Terms of Settlement. Thereafter, in an application to enlarge the time for completion of the building, the time to complete the building in terms of the decree was merely enlarged under Section 148 of the Code of Civil Procedure, 1908 read with Rule 48 of Chapter 38 of the Original Side Rules of this Court. This order was challenged in appeal 4 and was not interfered with. In fact, the Hon'ble Division Bench by an order dated 16th October, 2007, inter alia, held as follows:-
"The judgment Debtor made the application being GA NO. 1455 of 2005 to enlarge time of completion of the building and the Hon'ble Single Judge enlarged the time under Section 148 of Code of Civil Procedure read with Rule 48 of Chapter 38 of the Original Side Rules of this Hon'ble Court under inherent powers. (See Page 100, 3rd para of the application).
"Hence, we are of the opinion that the time so extended by the Court is within its jurisdiction in the facts and circumstances of the case and accordingly we do not find any reason to interfere with the order so passed by the Hon'ble Court".
7. Neither did the Single Judge nor the Division Bench deal with the entire decree but merely enlarged the time for completion of the building. Hence, the subject matter of the decree and the order of Appellate Court are for all practical purposes identical. No fresh decree has been passed by the Appellate Court. There has been no adjudication on the merits of the decree in either of the orders dated 11 July, 2005 or 16 October, 2007. The mere extension of time with a time limit cannot tantamount to modification of the decree. The variation of the time period does not in any manner whatsoever affect the character of the decree regardless of the submissions of the parties. [Tirumalachetti Rajaram vs. Tirumalachetti Radhakrishnayya Chetty AIR 1961 SC 1795 at para 19].
8. The decisions cited by the applicant are both distinguishable and inapposite.
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9. The execution proceedings have procrastinated for a long time. The decree dated 21st May, 2002 was passed by consent and the judgment-debtor has obviously approached this Court for collateral purposes.
10. In this background, there is no merit in the contentions raised by the applicant GA/4/2023 stands dismissed. However, there shall be no order as to costs.
11. The parties are at liberty to mention the execution proceeding i.e. EC 220 of 2014 before the Regular Bench having determination.
(RAVI KRISHAN KAPUR, J.) Later:
The prayer for stay of this order is considered and rejected.
(RAVI KRISHAN KAPUR, J.) SK.