Madras High Court
Karuppaiya Muthuraja vs V.Karuppaiya Muthuraja on 27 January, 2011
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27/01/2011
CORAM
THE HONOURABLE MR.JUSTICE A.SELVAM
CRP NPD(MD)No.1288 of 2008
Karuppaiya Muthuraja
.. Petitioner/Decree holder/Plaintiff
Vs.
1.V.Karuppaiya Muthuraja
2.Perumal Muthuraja
.. Respondents/Judgment debtors/defendants
Civil Revision Petition filed under section 115 of CPC against the order
dated 17.04.2008 passed in E.P.No.15 of 2007 in Original Suit No.111 of 1995 by
the District Munsif Court, Thuraiyur.
!For Petitioner ... M/s.V.Singan
^For R - 1 ... M/s.D.Shanmugaraja Sethupathy
for M/s.Raja and Pathy
For R - 2 ... No appearance
:ORDER
The disgruntled and also undaunted litigant as revision petitioner has challenged the impugned order dated 17.04.2008 passed in E.P.No.15 of 2007 in Original Suit No.111 of 1995 by the District Munsif Court, Thuraiyur.
2. The compendium of the case of the revision petitioner is that the revision petitioner as plaintiff has instituted Original Suit No.111 of 1995 on the file of the Court below for the relief of mandatory injunction, wherein an executable decree has been passed in favour of the revision petitioner/plaintiff and directed the defendants therein to execute the same within a period of three months. The aggrieved defendants as appellants have preferred Appeal Suit No.121 of 2000 on the file of the first appellate Court.
3. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed Appeal Suit No.121 of 2000 on 19.01.2004 and thereby confirmed the Judgment and decree passed by the trial Court in Original Suit No.111 of 1995 and thereafter the revision petitioner (decree holder) as petitioner has filed E.P.No.15 of 2007 on 05.03.2007 and the Court below has dismissed the same as barred by limitation in view of provision of Article 135 of the Limitation Act, 1963. Against the impugned order passed by the Court below, the present civil revision petition has been preferred at the instance of the petitioner /decree holder/plaintiff.
4. The learned counsel appearing for the revision petitioner has advanced his reiterative argument to the effect that Original Suit No.111 of 1995 has been instituted for the relief of mandatory injunction, wherein an executable decree has been passed on 28.03.2000 and thereby directed the respondents herein (defendants) to execute the same within a period of three months and against the Judgment and decree passed by the trial Court, Appeal Suit No.121 of 2000 has been preferred on the file of the appellate Court and the appellate Court after hearing arguments and also after considering the available evidence on record has dismissed the same on 19.01.2004 and thereby confirmed the Judgment and decree passed by the trial Court and subsequently the execution petition in question has been filed on 05.03.2007 and since the appellate Court has dismissed Appeal Suit No.121 of 2000 on 19.01.2004, from 19.01.2004 as per the decree passed by the trial Court, the revision petitioner /decree holder/plaintiff is having three years three months time so as to execute the decree in question as per the provision of Article 135 of the Limitation Act, 1963 and further the Judgment and decree passed by the trial Court have become merged with the Judgment and decree passed by the appellate Court on 19.01.2004 and the Court below without considering the above factual as well as legal premise has erroneously dismissed E.P.No.15 of 2007 and therefore, the order passed by the Court below is liable to be interfered with.
5. As a riposte to the argument advanced by the learned counsel appearing for the revision petitioner, the learned counsel appearing for the respondents has contended that the trial Court has passed its Judgment and decree on 28.03.2000, wherein three months time has been granted to the respondents/defendants to execute the decree of mandatory injunction and therefore, the Judgment and decree passed in Original Suit No.111 of 1995 has become executable from 28.06.2000 and the petition in question in E.P.No.15 of 2007 has been filed on 05.03.2007 and no stay has been granted in Appeal Suit No.121 of 2000 and therefore, the petition in question is barred by limitation in view of the provision of Article 135 of the Limitation Act, 1963 and the Court below after considering the above factual as well as legal aspects has rightly dismissed E.P.No.15 of 2007 and therefore, the order passed by the Court below need not be interfered with.
6. The substratum of the present case is nothing but Article 135 of the Limitation Act, 1963 and the same reads as follows:
For the enforcement of a decree granting a mandatory injunction.
Three years The date of the decree or where a date is fixed for performance, such date.
7. The provision of Article 135 of the Limitation Act, 1963 can be vivisected as follows:
"If a decree of mandatory injunction is granted, the same should be executed within a period of three years from the date of decree, or if time is fixed for performance the same should be executed within three years from the date of completion of time fixed therein."
8. With the aforesaid legal backdrops the Court has to further analyse the present case. It is an admitted fact that in Original Suit No.111 of 1995 an executable decree of mandatory injunction has been passed on 28.03.2000 by the trial Court, wherein three months time has been given to the respondents/defendants to perform their part. In the meanwhile, the Judgment and decree passed by the trial Court have been agitated in Appeal Suit No.121 of 2000 and the same has been disposed of on 19.01.2004 and the present Execution Petition has been filed on 05.03.2007.
9. The linchpin of the argument advanced by the learned counsel appearing for the revision petitioner is that the Judgment and decree passed in Original Suit No.111 of 1995 by the trial Court have become merged with the Judgment and decree passed by the appellate Court in Appeal Suit No.121 of 2000 on 19.01.2004 and from 19.01.2004 as per the Judgment and decree passed by the trial Court, the revision petitioner is having three years three months time that is, upto 19.04.2007 and the Execution Petition in question has been filed on 05.03.2007 and therefore, the Execution Petition in question has been filed within time as stipulated in Article 135 of the Limitation Act, 1963. In support of his contention, he has befittingly drawn the attention of the Court to the following decisions:
(a) In AIR 2004 Supreme Court 1596 (Union of India V. West Coast Paper Mills Ltd.), the Honourable Apex Court has held as follows:
"Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the Court of Appeal."
(b) In AIR 2010 Andhra Pradesh 7 (Fateh Mohammed V. Fareeda Banu), it has been held that "execution of injunction decree - Limitation would start from date of decree passed by appellate Court and not by trial Court - Since appeal being continuation of proceedings of original suit decree passed by appellate Court merges with decree passed by trial Court."
10. In fact the decision reported in AIR 2004 Supreme Court 1596 (Union of India V. West Coast Paper Mills Ltd.) stands as a precursor to the decision rendered by the High Court of Andhra Pradesh.
11. From the conjoint reading of the said decisions, the Court can deduce the following factual as well as legal aspects:
(a) Appeal is nothing but continuation of Original Suit
(b) Judgment and decree passed by the trial Court have become merged with the Judgment and decree passed by appellate Court
(c) Starting point of limitation would commence from the date of decree passed by appellate Court.
12. In the instant case, as pointed out in many places, the trial Court has rendered its Judgment and decree in Original Suit No.111 of 1995 on 28.03.2000, wherein three months time has been granted to the respondents/defendants to perform their part. In the meanwhile, against the Judgment and decree passed by the trial Court, Appeal Suit No.121 of 2000 has been preferred on the file of the appellate Court and the same has been dismissed on 19.01.2004 and thereby confirmed the Judgment and decree passed by the trial Court. In view of the aforesaid dictum it is very clear that the Judgment and decree passed by the trial Court in Original Suit No.111 of 1995 have become merged with the Judgment and decree passed by the appellate court in Appeal Suit No.121 of 2000 on 19.01.2004. It has already been pointed out that the trial Court has granted three months time to the respondents/defendants to perform their part. Therefore, the starting point of limitation would commence only from 19.04.2004. As per provision of Article 135 of the Limitation Act, 1963, within a period of three years, from the date of completion of performance, an Execution Petition can be levied. Therefore, the revision petitioner/decree holder/plaintiff has had time upto 19.04.2007. But the present petition has been filed on 05.03.2007. Therefore, it is pellucid that E.P.No.15 of 2007 has been filed within stipulated time. Under the said circumstances, the dismissal order passed by the Court below stating that E.P.No.15 of 2007 is barred by limitation is totally absurd and the same is liable to be set aside.
13. The learned counsel appearing for the respondents/defendants as narrated earlier, has made his feckless attempt by way of inviting the attention of the Court to the provision of Section 15(1) of the Limitation Act, 1963 as well as the provision of Order XLI Rule 5 of the Code of Civil Procedure, 1908. Section 15(1) of the Limitation Act, 1963 reads as follows:
"In computing the period of limitation for any suit or application for execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."
14. It is a settled principle of law that if an order or decree has been stayed by an appellate Court, the period of stay as well as the date on which the same has been issued and the date on which the same has been vacated should be excluded.
15. Order XLI Rule 5 of the Code of Civil Procedure, 1908 reads as follows:
"An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so fas as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree."
16. It is also equally a settled principle of law that mere filing of an appeal does not amount to stay of the Judgment and decree passed by trial Court, unless a specific stay is granted. The aforesaid principle of law has been encrusted in the decision reported in AIR 2001 Supreme Court 279 (Ratan Singh vs. Vijaya Singh and others), wherein the Honourable Apex Court has held that "filing of an appeal does not affect enforceability of a decree, unless stay is obtained."
17. In the instant case, such contingencies have not arisen. Therefore, the Court cannot attune the provision of section 15(1) of the Limitation Act, 1963 and also the provision of Order XLI Rule 5 of the Code of Civil Procedure, 1908.
18. The learned counsel appearing for the respondents/defendants has drawn the attention of the Court to the following decisions:
(a) In (2007) 2 MLJ 901 (T.Govindarajan and others V. T.Soundarajan), this Court has held that mere filing of an appeal does not amount to stay of execution.
(b) In 2003 (1) WLC 655 (Moman vs. Munshi and Ors.) the High Court of Rajasthan has held that Article 135 of the Limitation Act, 1963 specifically provides that the application for execution of mandatory decree should be filed within three years from the date of decree and the same should be read along with section 15(1) of the said Act.
(c) In (1989) 1 MLJ 263 (A.Krishnaraj Vs. T.Vasantha Gopal and Ors.) this Court has held that a decree of mandatory injunction should be executed within a period of three years as contemplated under Article 135 of the Limitation Act, 1963. Mere pendency of Civil Miscellaneous Appeal against the order passed in Interlocutory Application would not save the period of limitation.
(d) In AIR 1971 AP 246 (Nandigama Venkata Krishna Rao V. Mullpudi Ganeswara Rao) it has been held that in filing Execution Petition, the benefits available under section 15(1) of the Limitation Act, 1963 can be utilised.
19. In fact, there is no second opinion or no Court can lay its hands against the aforesaid legal positions. But the fact as well as legal position involved in the present case are totally different. The only legal point which involves in the present case is as to whether the Judgment and decree passed by a trial Court would have become merged with the Judgment and decree passed by an Appellate Court. It has already been decided in detail that the Judgment and decree passed by a trial Court would have become merged with the Judgment and decree passed by an appellate Court in view of the decision rendered by the Honourable Apex Court. Further it has already been discussed in detail that the revision petitioner/Judgment debtor /plaintiff is having time to file Execution Petition upto 19.04.2007 and the present Execution Petition has been filed on 05.03.2007 and therefore, the present Execution Petition has been filed within the stipulated time and the same is not barred by limitation. The Court below without considering the aforesaid factual as well as legal aspects has erroneously dismissed E.P.No.15 of 2007. In view of the foregoing elucidation of both the factual as well as legal aspects, it is needless to say that the argument advanced by the learned counsel appearing for the revision petitioner is really having merit, whereas the argument advanced by the learned counsel appearing for the respondents is sans merit and altogether the present civil revision petition is liable to be allowed.
20. In fine, this civil revision petition is allowed without cost and the impugned order dated 17.04.2008 passed in E.P.No.15 of 2007 in Original Suit No.111 of 1995 by the District Munsif Court, Thuraiyur is set aside and the District Munsif Court, Thuraiyur is directed to make further proceedings in E.P.No.15 of 2007 in Original Suit No.111 of 1995.
mj To The District Munsif Court, Thuraiyur