Gujarat High Court
Hemlataben Kumarpal Shah vs Gujarat Housing Board on 18 August, 2025
NEUTRAL CITATION
C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5715 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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HEMLATABEN KUMARPAL SHAH & ANR.
Versus
GUJARAT HOUSING BOARD & ORS.
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Appearance:
MR. KUSH N. BAVISHI(14121) for the Petitioner(s) No. 1,2
G H VIRK(7392) for the Respondent(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 3
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2.1,2.2,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/08/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. H. J. Karathiya with Mr. Kush N. Bavishi, learned advocate Mr. Prashanth Undurti for learned advocate Mr. G.H.Virk for responding No.1 and learned advocate Mr. Pratik Jasani for respondent No.3. Though served, none appeared on behalf of rest of the respondents.
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2. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside impugned order dated 17.01.2025 passed by the learned 8 th Additional Senior Civil below Exh.1 in Regular Civil Execution No. 38 of 2018 ;
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be stay operation, implementation and execution of the order dated 17.01.2025 passed by the learned 8th Additional Senior Civil Judge, Rajkot below Exh.1 in Regular Civil Execution No.38 of 2018 and further be pleased to direct the learned trial Court to proceed further in the Regular Civil Execution No.38 of 2018;
(C) During the pendency and final disposal of the present petition, YOUR LORDHSHIPS may be pleased to direct the Respondents herein to maintain status quo qua property in question;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
Submission of the petitioners
3. Learned advocate Mr. Karathiya would submit that Executing Court has passed an erroneous order below Exh.1, thereby dismissed/ rejected Regular Civil Execution Application No.38 of 2018. He would also submit that doctrine of merger is completely lost sight by the Executing Court while observing that execution so filed by the petitioners herein was held to be time barred.
Page 2 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined 3.1 Learned advocate Mr. Karathiya would further submit that initially, trial Court passed the decree in favour of petitioners on 29.10.1977, which was carried an appeal by respondent No.1 - Gujarat Housing Board, and after bi-parte hearing, vide its judgment and decree dated 10.10.2017, the Appellate Court has confirmed the aforesaid of judgment and decree passed by the trial Court.
3.2 Learned advocate Mr. Karathiya would further submit that as per doctrine of merger, once the appellate Court confirms the judgment and decree of the trial Court, it merges with the decree passed by the Appellate Court, and thereafter, if there is no further appeal filed by the respondents, the petitioners will be within the right to file execution from passing of such decree by the Appellate Court.
3.3 Learned advocate Mr. Karathiya would submit that after such date of passing of decree by the Appellate Court would have been taken into account by the Executing Court, i.e. 10.10.2017, such erroneous and perverse observation by the Executing Court resulted into dismissal of execution could have been avoided.
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3.5 Lastly, Learned advocate Mr.Karathiya would rely upon decision of Honorable Supreme Court of India in the case of Shanthi vs. T.D.Vishwanathan and another reported in (2019) 11 SCC 419, thereby, learned advocate Mr.Karathiya would submit that order impugned is ex-facie contrary to law, which requires interference by this Court under Article 227 of the Constitution of India.
3.6 Making the above submission, learned advocate Mr. Karathiya would request this Court to allow the present writ application.
Submission of respondent No.1
4. Per contra, learned advocate Mr.Prashanth Undurti appearing for respondent No.1 would state as an officer of the Court that there appears an error on the part of Page 4 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined Executing Court while dismissing the execution on the ground of limitation. Otherwise, respondent No.1 reserved his right to object such execution on merits.
Submission of respondent No.3 5.0 Learned advocate Mr. Pratik Jasani would respectfully submit that there is no error much less any gross error of law on the part of the Executing Court while passing the impugned order, thereby, no interference is required by this Court while exercising its power under Article 227 of the Constitution of India.
5.1 Learned advocate Mr. Jasani would submit that undisputedly the trial Court has passed decree on 29.10.1977 in favour of the petitioners and though the Regular Civil Appeal filed by the respondent No.1 herein before the appellate Court, in absence of any stay granted by the appellate Court against execution of decree passed by the trial Court, such decree passed by the trial Court was enforceable. It is submitted that as per Article 136 of the Limitation Act, 1963 (hereinafter referred to as the Act, 1963), period of limitation of execution of decree is 12 years when it become enforceable, so in absence of any stay against such decree passed on 29.10.1977, it became Page 5 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined enforceable on the same date whereby, limitation period expired on 20.10.1999. So, it is submitted that execution petition filed in the year 2018 by the petitioners is hopelessly time barred.
5.2 Learned advocate Mr. Jasani would further submit that in absence of any stay of execution of a decree, decree holder could have easily execute such decree and there was no requirement under law to wait till final outcome of Regular Appeal filed by the judgment debtor. It is submitted that, as per Section 144 of the Code of Civil Procedure, which provides for restitution, in a case where the impugned judgment and decree passed by the trial Court is reversed or modified in appeal, the judgment-debtor /appellant in such appeal becomes entitled to claim restitution under Section 144 of the CPC. In any case, in absence of stay of execution of decree, limitation period so prescribed as per the Act, 1963, the decree holders require to execute the decree within 12 years from the date on which it is passed.
5.3 Learned advocate Mr. Jasani would further respectfully submit that as per Order 41 rule 5 of Limitation Act mere filing of Regular Appeal by the judgment debtor would not tantamount to stay of execution of decree. It is submitted that in a given case, if grounds made out for any sufficient Page 6 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined cause then after, the decree can be stayed by the appellate Court and decree would not enforceable in law. It is submitted that undisputedly in the present case, during the pendency of the appeal filed by the respondent No.1, no stay was granted against execution of decree, the petitioners could have easily executed the decree and having not done so, after lapse of 12 years from passing of such decree by the trial Court, it is neither enforceable nor executable.
5.4 Learned advocate Mr. Jasani would further submit that merely because the appeal filed by the respondent No.1 dismissed by the appellate Court would not revive the period of limitation which was already expired for execution of decree passed by the trial Court. It is respectfully submitted that once the limitation period starts running, so far as execution of decree is concerned, on its expiry as provided under the Act, 1963, it would not revive for the benefit of decree holders, once appeal stands dismissed.
5.5 Learned advocate Mr. Jasani would further submit that the doctrine of merger does not reset the clock of limitation, nor it can override the provisions of the Limitation Act, 1963, inasmuch as the enforceability of a decree is governed strictly by the said Act. It is submitted that wherever a stay has been granted by the appellate Court against the execution of a decree, upon dismissal of such appeal the stay Page 7 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined automatically stands vacated and till such period, decree was unexecutable. However, in no other cases, where no stay granted against execution of the decree, would not become enforceable beyond the prescribed limitation period once appeal dismissed, and as such, once 12 years have elapsed from the date of its issuance, execution of such decree would be barred.
5.6 Learned advocate Mr. Jasani would further submit that there are express provisions in the Code of Civil Procedure for stay of execution of a decree, as provided under Order XLI Rule 5 and Order XXI Rule 26 of CPC. Therefore, it follows that in the absence of any stay granted in favour of the judgment-debtor, the decree-holder is always entitled to execute the decree passed by the competent Court in his favour. It is further submitted that if no such stay of execution is granted, and the decree-holder fails to take steps for execution of the decree within the stipulated period as prescribed under the Limitation Act, 1963, then upon expiry of such limitation, the decree would no longer be enforceable in law.
5.7 Lastly, learned advocate Mr. Jasani would submit that in the case of Shanthi (supra) there was stay granted against execution of decree which was later on vacated on dismissal of appeal, thereby such decision would not be applicable to Page 8 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined the facts of the present case.
5.8 Learned advocate Mr. Jasani would refer and rely upon the decisions of the Hon'ble Apex Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 more particularly Para-8. Learned advocate Mr. Jasani would thereby contended that unless there is an expressly any stay granted by the appellate Court against execution of the decree, the decree passed by the trial Court remains executable and enforceable in law within 12 years from its passing.
5.9 Making the above submission, learned advocate Mr. Jasani would request this Court to reject the present writ application.
6. No other and further submissions have been made by the learned advocates for the respective parties.
Point for determination
(i) Whether in the facts and circumstances of the case, the decree dated 29.10.1977 passed by the trial Court having confirmed by the appellate Court while dismissing the appeal on 10.10.2017 non-executable as 12 years already passed from Page 9 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined the date of passing of decree by the trial Court ?
(ii) Whether in the facts and circumstances of the case, the trial Court has committed any jurisdictional error of law while holding the execution application in question is time barred?
Analysis
7. It is not in dispute that decree of trial Court passed on 29.10.1977 was challenged by respondent No.1 in appeal filed under Section 96 read with Order XLI of Civil Procedure Code, 1908 and after hearing the parties, the Appellate Court vide its order dated 10.10.2017 has confirmed such judgment and decree passed by the trial Court. It is apposite to reproduce operative order of the appellate Court, which reads as under:-
"1] The present Regular Civil Appeal No.47/2005 is hereby dismissed with no order as to costs.
2] The judgment and decree dt. 29-10-1977 passed by the Civil Judge (SD), Rajkot in R. C. S. No.62/1972 stands confirmed.
3] Decree to be drawn accordingly. Page 10 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined 4] R & P of Regular Civil Suit No.62/1972 be sent back
to the Ld. Trial Court with the copy of this judgment forthwith."
8. Thus, the decree passed by the Trial Court would merge in the decree of Appellate Court, which was passed in the year 2017, and taking into account the fact that decree of Trial Court is merged in the decree of Appellate Court, execution application, so filed in the year 2018, by no stretch of imagination, can be considered as time barred, as erroneously held by Executing Court while passing the order impugned in the present application. As such, issues germane in the present application are squarely covered by the decision of Hon'ble Supreme Court of India in the case of Shanthi (Supra).
9. At this stage, it would be apt to refer the observation made by the Hon'ble Apex Court in the case of Shanthi (supra) which reads as under :-
"7. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724, wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication Page 11 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.
8. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. Hence, in our considered view, the execution petition filed by the plantiffs/respondents is within time, consequently the appeal fails and stands dismissed."
(emphasis supplied)
10. It would also apt to refer and rely upon the decision of the Full Bench of the Hon'ble Apex Court in the case of Chandi Prasad and others Vs. Jagdish Prasad and others (2004) 8 SCC 724, answering the reference in the context of the conditions prescribed under the Limitation Act, 1963, it has been held as under:"
"1. What would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of Page 12 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined the Limitation Act, 1963 (the Act) is the question involved in this appeal which arises out of a judgment and decree dated 30 th March, 2001 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 8954 of 2001.
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9. A decree is defined in Section 2(2) of the Code to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. As against a judgment and decree unless otherwise restricted, a First Appeal would be maintainable under Section 96 of the Code and a Second Appeal under Section 100 thereof. A decree within the meaning of Section 2(2) of the Code would be enforceable irrespective of the fact whether it is passed by the Trial Court, the first Appellate Court or the second Appellate Court.
10. Where a statutory appeal is provided for, subject, of course to the restrictions which may be imposed, it is continuation of suit. It is also not in dispute that when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger applies.
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18. The reasons for bringing on the statute book, the present Article 136 may be noticed. By reason of the said amendment, the filing of the execution petition has been simplified and the difficulties faced for computation which used to arise for grant of stay or not has become immaterial. In terms of Article 136 of the Act, thus, a decree can be executed when it becomes enforceable.
19. Article 136 substantially reproduces the provisions of Section 48(1) of the Code of Civil Procedure which by reason of the Act stands repealed. In that view of the matter, the Parliament thought it fit to provide for one period of limitation for an application for execution in stead and place governing each of the several execution applications which the decree holder can make within a period of 12 years.
20. It is not disputed that all decrees; be it original or the appellate, Page 13 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation.
21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in presence of both parties, the same would replace the judgment of the lower court and only the judgment of the High Court would be treated as final (See U.J.S. Chopra vs. State of Bombay, AIR 1955 SC 633).
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23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.
24. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. (See V.M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income-tax, AIR 2000 SC 1623).
25. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and others vs. State of Kerala and Another (2000) 6 SCC 359) wherein this Court inter alia held that when a special leave petition is disposed of a by a speaking order, the doctrine of merger shall apply stating:Page 14 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025
NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined "41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.
42. "To merge' means to sink or disappear in something else; to become absorbed or extinguished'; to be combined or be 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. L.VII, pp. 1067-
68).
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the S.L.P. stage obviously that order cannot also be affirmed at the SLP stage."
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26. In Kunhayammed (supra), it was observed:
"12. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior form and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."
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28. However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. [See ILR 2002 (1) Del. 33] RATANSINGH:
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30. Upon analyzing when a decree or order becomes enforceable vis-`-vis the definition of 'decree' in Section 2(2) of the Code this Court observed that when a dismissal of an appeal takes place on the ground of its being time barred, no decree is passed.
(emphasis supplied)
11. The conjoint reading of the aforesaid decisions of the Hon'ble Apex Court clear all the submissions so canvassed by the learned advocate Mr. Jasani for respondent No.3. Inasmuch as it is clear like a day that once the appeal stands dismissed, whereby the appellate Court confirmed the decree passed by the trial Court, it merges with the decisions of the appellate Court whereby as per doctrine of merger Page 16 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined decree drawn up by the appellate Court would become enforceable in law.
12. As such I am not at all impressed upon by the submissions so canvassed by the learned advocate Mr. Jasani for respondent No.3. Inasmuch as having so observed hereinabove that the appellate Court dismissed the appeal filed by respondent No.1 on 10.10.2017 whereby the drawn up decree which is now sought to be executed by way of execution in question, which can be clearly seen from bare reading of Para-10 of the execution application. By no stretch of imagination, it can be gainsaid that execution application is time barred having only filed in the year 2018.
13. The legal submissions canvassed by learned advocate Mr. Jasani are misconceived at law and deserve outright rejection, as they cannot stand in light of what has been expressly held by the Hon'ble Apex Court as referred to hereinabove. It is well settled that execution of a decree can be stayed only by an express order of the appellate Court under Order XLI Rule 5 of the CPC, or by the executing Court under Order XXI Rule 26 of the CPC.
14. It is also true that the decree holder in a given case can execute decree if not expressly stayed by the Court, it can Page 17 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined never be argued and allowed by the Court that in such a case if decree holder failed to execute decree within 12 years from passing it by the trial Court, it can't be executed after dismissal of appeal beyond period of 12 years.
15. The aforesaid argument is completely contrary to doctrine of merger inasmuch as once, the appeal stands dismissed on its merit, the decree passed by the trial Court merges with the judgment/decree passed by the appellate Court may be by confirming such decree. Once, such decree drawn up by the appellate Court in favour of decree holder, it is a decree which is not only enforceable but executable under the provisions of law if filed within 12 years from the date of passing of such decree by the appellate Court concerned.
16. It would be incorrect to plead that by way of doctrine of merger, it can't override of limitation. It is not the question of overriding the law of limitation by allowing doctrine of merger, but by way of doctrine of merger, decree passed by the trial Court merges with the decree drawn up by the appellate Court, whereby the decree holder gets right to execute such decree in accordance with law.
17. Had there been a case wherein the appeal was not Page 18 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined validly instituted in law i.e. the delay is not condoned by the appellate Court or it is dismissed for default or expressly barred by under law, such dismissal would not amounts of passing of decree by the appellate Court. I say that only in that circumstances, the doctrine of merger, would not be applicable. In that eventuality, the decree passed by the trial Court only requires to be executed in law as enforceable in law.
18. Having so found that the decree which is drawn up / passed by the appellate Court once dismissed the appeal on 10.10.2017, such decree is not only enforceable but executable in law and accordingly, the execution application filed by the petitioners herein in the year 2018 could not have been held to be time barred. The Executing Court has gravely committed an error of law, amounting to a jurisdictional error, in holding that the execution petition was filed beyond the period of limitation prescribed under the Limitation Act, 1963.
19. There is a complete fallacy and lack of proper appreciation of law on the part of the Executing Court in arriving at different conclusion that the petitioners were required to file the execution within 12 years from the date of the decree passed by the Trial Court on 29.10.1977 and Page 19 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined that having filed the execution in the year 2018, i.e., after about 41 years from the date of such decree, the proceedings were held barred by limitation.
20. The impugned order appears to have been passed due to written request made by respondent No.3 herein below Exh. 51 having contested that the execution application is time barred. Having so observed herein above that such an attempt made by respondent No.3 is not only misconceived on facts as well as law but tried to derail the execution by frustrating it whereby decree holder was not only deprived from the fruits of decree but also require to file the present writ application which could have been avoided. So, respondent No.3 requires to pay cost to the petitioners.
21. Considering such fact, this Court would like to impose exemplary cost upon respondent No.3.
Conclusion
22. In view of the aforesaid observation, discussion and reasons, I am of the view that the impugned order is not only erroneous, perverse, but passed contrary to the provisions of law and so also contrary to law laid down by the Hon'ble Apex Court in the cases of Shanthi (supra) and Chandi Page 20 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined Prasad (supra).
23. According to this Court the impugned execution application filed in the year 2018 for execution of decree drawn / passed by the appellate Court as per juidgement/decree dated 10.10.2017 whereby confirming the judgment /decree passed by the trial Court dated 29.10.1977 is neither time barred nor non-executable / un enforceable in law.
24. The present writ application is hereby allowed. Consequently, the impugned order dated 17.01.2025 passed by the 8th Additional Senior Civil Judge, Rajkot below Exh. 1 in Regular Civil Execution Application No. 38 of 2018 is hereby quashed and set aside. Accordingly, Regular Civil Execution Application No. 38 of 2018 is restored back on its file, which may be decided in accordance with law as expeditiously as possible.
25. As observed hereinabove, respondent No.3 is hereby directed to deposit a sum of Rs. 25,000/- as a cost, to be paid to the petitioners herein. Such amount of cost be deposited with the Executing Court within a period of 15 days from the date of receipt of copy of this order. Once such cost will be deposited, the Executing Court shall pay such amount of cost Page 21 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025 NEUTRAL CITATION C/SCA/5715/2025 JUDGMENT DATED: 18/08/2025 undefined equally in favour of petitioners after proper verification. The compliance of payment of cost be looked after and taken care by the Executing Court before allowing the respondent No.3 herein to make any objection in regards to the execution of decree.
26. Rule is made absolute to the aforesaid extent.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 22 of 22 Uploaded by SALIM(HC01108) on Thu Aug 21 2025 Downloaded on : Thu Aug 21 22:03:30 IST 2025