Jharkhand High Court
Ramkrit Dhobi vs (A) Mahendra Dhobi on 10 September, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2910 of 2004
Ramkrit Dhobi, son of Late Sadhu Dhobi, resident of New
Sitaramdera, Holding No. 13, Dhobi Line, PO-Agrico,
PS-Sitaramdera, Town Jamshedpur, District East Singhbhum,
Jharkhand ... ... Petitioner
Versus
1(a) Mahendra Dhobi, son of Late Ram Swarup Dhobi
1(b) Upendra Dhobi, son of late Ram Swarup Dhobi
Both are resident of new Sitaramdera, Holding No. 13, Dhobi Line,
PO-Agrico, PS-Sitaramdera, Town Jamshedpur, District-East
Singhbhum, Jharkhand ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Rahul Kumar Gupta, Advocate Mr. Jitendra Upadhayay, Advocate Mr. Akash Bhushan, Advocate For the Respondents : Mr. Rajeev Ranjan Tiwary, Advocate Mr. Vishal Kumar Tiwary, Advocate
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15/10.09.2018 The petitioner, who is plaintiff in Title Suit No. 252 of 1984, is aggrieved of order dated 21.04.2004 by which Execution Case No. 01 of 2003 has been dismissed as time-barred.
2. Contention raised on behalf of the petitioner is that it is the date of the appellate order, irrespective of the fact that the original decree has been modified, affirmed or reversed, which is the date when the decree becomes enforceable, ofcourse, subject to the condition, if any, provided in the decree.
3. Title Suit No. 252 of 1984 was instituted for declaration of the plaintiff's exclusive khas possession over Schedule-B properties and for ejection of the defendants from Schedule-B premises. The suit was decreed vide judgment dated 11.09.1990 and a decree was prepared, sealed and signed on 22.09.1990. The appeal preferred against the judgment and decree in Title Suit No. 252 of 1984 vide Title Appeal No. 33 of 1990 preferred by Ramswaroop Dhobi and others stood dismissed on contest vide judgment dated 2 28.08.2002; the judgment dated 11.09.1990 and decree dated 22.09.1990 passed in Title Suit No. 252 of 1984 were confirmed and the appellant-defendants were directed to give vacant possession of the suit property detailed in Schedule-B of the plaint to the plaintiff within three months from the date of the appellate order. The second appeal being S.A. No. 70 of 2003 filed by the defendant-Ram Swarup Dhobi was dismissed on 15.04.2004.
4. Section 2(2) CPC defines decree to mean the formal expression of adjudication by which rights of the parties are conclusively determined with regard to all or any of the matter in controversy in the suit. The judgment in Title Appeal No. 33 of 1990 and order dated 15.04.2004 passed in S.A. No. 70 of 2003, both are on merits of the appeal. Order passed in S.A. No. 70 of 2003 records that no substantial question of law is involved in the case. The second appellate court has recorded a finding that the courts below have correctly appreciated the evidence on record and arrived at a correct finding on the merit of the controversy between the parties. In "Chandi Prasad and Others vs. Jagdish Prasad and Others"
reported in (2004) 8 SCC 724, it has been held that the doctrine of merger would apply irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court. It further says that the doctrine of merger postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.
5. In the aforesaid premises, without going into the issue sought to be raised by Mr. Rajeev Ranjan Tiwary, the learned counsel for the respondents that whether the judgment in Title Appeal No. 33 of 1990 would amount to modification of the original decree in Title Suit No. 252 of 1984 or not, I find that the impugned order dated 21.04.2004 passed in Execution Case No. 01 of 2003 warrants interference. The trial judge has nutured a wrong notion in law that the decree become enforceable on the very date when the judgment is pronounced and the time begins to run from that date.
3Article 136 of the Limitation Act, 1963 provides that the period of limitation, which is 12 years, would start from the date when the decree becomes enforceable; all decree becomes enforceable from the date it is made subject to any condition provided therein. As on the date when the impugned order dated 21.04.2004 was passed law in respect of limitation for execution of a decree was already amended and the judgment of the appellate court in T.A. No. 33 of 1990 as well as dismissal of S.A. No. 70 of 2003 were on record. Apparently, the executing court has committed a serious error in law in dismissing the execution case as time-barred.
6. Mr. Rajeev Ranjan Tiwary, the learned counsel for the respondents has raised an objection that which was the decree put on execution is not known.
7. This also becomes an issue why the impugned order dated 21.04.2004 must go.
8. Viewed thus, and for the reasons indicated hereinabove, the impugned order dated 21.04.2004 is set-aside. The Execution Case No. 1 of 2003 is restored to its original file.
9. The writ petition stands allowed, in the aforesaid terms.
(Shree Chandrashekhar, J.) Tanuj/-