Andhra Pradesh High Court - Amravati
Peddi Ranga Rao vs Muthavarapu Singaiah on 12 July, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.1496 of 2019
ORDER
The unsuccessful decree holders - plaintiffs filed this civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, challenging the order, dated 28.02.2019, of the learned Principal Junior Civil Judge, Ponnur, passed in EP.no.24 of 2017 in OS.no.52 of 1996.
I have heard the submissions of Sri N. Sri Ram Murthy, learned counsel appearing for the revision petitioners - DHrs and of Sri Y. Subba Rao, learned counsel appearing for the respondents - JDrs. I have perused the material record.
The core facts, in brief, are as follows:
In the afore-stated suit, the trial Court granted a decree, dated 15.10.2001, in favour of the revision petitioners - plaintiffs - DHrs ['DHRs', for short] and against the respondents - defendants - JDrs ['JDRs', for short]. The operative portion of the decree of the trial Court reads as under:.
"1. That the 1st defendant be and is hereby directed by way of mandatory injunction to remove the levelled up earth all along X X1 X2 X3 to a length of 850 links, width of 30 links and height of one link and also the 15 and 32 mounds of earth abutting X1 X2 line on northern and eastern sides respectively within 3 (three) months from today ie., 15.10.2001, in default, the same will be done through the process of law;
2. That the 2nd defendant be and is hereby directed by way of mandatory injunction to remove the levelled up earth in M N O P plot to a length of 90 links, width of 60 links and height of four links within 3 (three) months from today i.e., 15.10.2001 failing which the same will be done through the process of law;
3. that the defendants and their men be and are hereby restrained by way of consequential permanent injunction from levelling up their lands in any manner and causing obstruction for free flow of rain water etc., from 2 MSRM, J CRP_1496_2019 plaintiffs land towards east upto the peddivaripalem road as shown in the plaint plan;
4. That the defendants do pay plaintiffs a sum of Rs.3283/- towards costs of the suit and do bear their own costs Rs.8/-."
Aggrieved of the said decree of the trial Court, the defendants preferred an appeal in AS.no.97 of 2001 on the file of the Court of the learned Senior Civil Judge, Bapatla. In the said appeal, pending disposal of the appeal, the JDrs obtained orders of stay of execution of the decree of the trial Court and the stay orders were in force from 16.08.2004 to 01.09.2015. The learned Senior Civil Judge, Bapatla, dismissed the appeal, by decree & judgment, dated 01.09.2015, and therefore, the stay order stood automatically vacated. Thus, by the decree of the appellate Court, the decree of the trial Court was confirmed. After the dismissal of the appeal and confirmation of the decree of the trial Court, the DHrs filed the subject Execution Petition, on 22.08.2017, for execution of the decree insofar as the reliefs of mandatory injunctions. The JDrs filed their counter in the EP and contended that the EP is barred by law of limitation since it was filed beyond period of three years, which is the period of limitation provided under Article 135 of the Indian Limitation Act, 1963, for execution of decrees for mandatory injunctions. The executing Court took the view that the decree of the trial Court is executable after expiry of three months from the date of decree, that is, 15.10.2001, as three months time was granted to the JDrs for compliance of the relief of mandatory injunctions granted by the decree. The executing Court also observed in the impugned order that from the said date viz., 15.10.2001 to 16.08.2004 there are no stay orders granted by the appellate Court during the pendency of the appeal, that is, approximately for a period of two years and seven months and that the said period has to be excluded from the three years period of limitation available for execution of the decree granting mandatory injunctions and that the EP therefore ought to have been filed within the period of 3 MSRM, J CRP_1496_2019 remaining five months from the date of the decree of the appellate court and that the EP, which was filed in the year 2017, is barred by law of limitation. Aggrieved thereof, the present revision petition is filed by the unsuccessful DHrs.
In this backdrop, learned counsel for the DHrs submitted as follows:
The view taken by the executing Court is erroneous and contrary to the settled legal position. The principle enunciated in the doctrine of merger is applicable to the facts of the case as there cannot be more than one decree or operative order governing the same subject matter at a given point of time. Since the decree of the trial Court was subjected to the remedy of appeal before the appellate Court, its finality is put in dispute. On the dismissal of the appeal, the decree of the appellate Court confirming the decree of the trial Court is the final decree, which is a binding and operative decree. Thus, in view of the doctrine of merger, the period of limitation starts to run from the date of the decree of the appellate Court. In the case on hand, the appellate Court dismissed the appeal of the JDrs by a decree, dated 01.09.2015. The EP is filed admittedly on 22.08.2017, that is, within a period of three years as provided in Article 135 of the Indian Limitation Act.
In support of the said contentions, he placed reliance on the decisions in Kunhayammed and others v. State of Keala and another [AIR 2000 SC 2587] and Union of India and others v. West Coast Paper Mills Ltd., and another [AIR 2004 SC 1596].
Per contra, learned counsel for the JDrs, while supporting the orders of the Court below, contended that the executing Court, before passing the impugned order, had conducted detailed enquiry and recorded evidence during the course of enquiry and that since a long time had elapsed from the dates of the institution of the suit and of the decrees granted by the trial Court & the 4 MSRM, J CRP_1496_2019 appellate court, and as there is a change in the features of the plaint schedule property, the decree for mandatory injunctions is not executable.
However, learned counsel of the DHrs contended that the said contention was rejected by the executing Court and that the EP was dismissed only on the ground of bar of limitation and, therefore, the impugned order is liable to be set aside and the matter requires to be remitted to the executing Court for proceeding with further steps for the due execution of the decree, as per procedure established by law.
I have given earnest consideration to the facts and submissions. The factual aspects, which are narrated supra, are not in dispute. The decree for the reliefs of mandatory injunctions was granted by the trial Court on 15.10.2001. A time of three months was granted to the JDrs for complying with the terms of the decree insofar as the reliefs of mandatory injunctions granted by the decree. The JDrs' appeal was dismissed by the appellate Court by a decree, dated 01.09.2015, and accordingly the decree of the trial Court was confirmed. From 15.10.2001 to 16.08.2004, that is, from the date of the decree of the trial Court and for certain period of time, there are no stay orders during the entire period of pendency of appeal; and, stay orders were in force only during the period from 16.08.2004 to 01.09.2015, that is, till the dismissal of the first appeal by the appellate Court. For execution of decree for mandatory injunctions, the period of limitation is three years, as per the provision of Article 135 of the Indian Limitation Act is not in dispute. The executing Court is of the view that in the absence of stay orders for certain period of time during the pendency of the appeal, the decree of the trial Court became executable after three months time that was allowed to the JDrs to comply with the reliefs of mandatory injunction and that therefore, the period for which the stay orders are not in force is excludable from the total period of 5 MSRM, J CRP_1496_2019 three years limitation available to the DHrs for executing the decree for mandatory injunctions.
In this backdrop, it is necessary to refer to the legal position obtaining. In the decision in Kunhayammed and others (1 supra), a Bench of three Hon'ble Judges of the Supreme Court explained the logic and scope of doctrine of merger as follows:
"In view of the doctrine of merger, a judgment pronounced by the appellate Court in exercise of its appellate jurisdiction after full fledged hearing would replace the judgment of the trial Court. Thus, the judgment of the appellate Court constitutes the final judgment to be executed in accordance with law by the executing Court. Hence, the limitation for filing the execution petition would commence not from the date of the decree of the trial Court but on the date when the appeal was disposed of by the appellate Court by granting a decree confirming the decree of the trial Court."
The above decision of the Supreme Court was referred to in a later decision rendered by a Bench of three Hon'ble Judges of the Supreme Court in West Coast Paper Mills Ltd. [2nd supra]. In this later decision, it is held that even in respect of 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.
In view of the settled legal position, it is beyond any cavil that the decree for reliefs of mandatory injunctions became executable only on the dismissal of the appeal by the appellate court on 01.09.2015.
For the afore-stated reasons and in the light of the legal position obtaining, it is to be held that the order of the executing Court brooks interference and is, therefore, liable to be set aside.
In the result, the Civil Revision Petition is allowed and the order, dated 28.02.2019, in EP.no.24 of 2017 in OS.no.52 of 1996 on the file of Principal 6 MSRM, J CRP_1496_2019 Junior Civil Court, Ponnur, is set aside and the afore-stated EP is remitted to the said Court for disposal afresh on merits and in strict accordance with the procedure established by law.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ M. SEETHARAMA MURTI, J 12.07.2019 Note: LR copy to be marked.
B/o Vjl 7 MSRM, J CRP_1496_2019 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.1496 of 2019 12.07.2019 Vjl