Mercy vs Chellayyan Nadar
a trial court decree with the appellate court decree is not dependant
on the question whether during the pendency of the appeal the
execution of the decree had been stayed by the appellate court or
whether while the appeal was pending as an order staying the
execution of the decree had not been passed, the decree holder had
taken steps to execute the decree. The principle of merger is based
on the reasoning that there cannot be at one and the same time
more than one operative order or decree governing the same
subject matter. If in the instant case the decree holder could have
filed an execution petition for the first time within three years from
the date of the appellate decree namely three years from 6.9.2011,
I find no reason why he could not have merely for the reason that
he had filed an execution petition beyond the period of three years
computed from the date of the original decree at a point of time
when the appeal from the original decree was pending and got that
execution petition dismissed as barred by limitation, filed a fresh
execution petition. As observed by the Division bench in
Muhammed Kunju v. Lancilad P.Gomez [2001 (3) KLT 21] with
the passing of an appellate decree and the merger of the trial court
decree with the appellate decree, the decree holder gets a fresh
starting point of limitation to file an application to execute the
decree. I am therefore of the considered opinion that the dismissal
of E.P.No.39 of 2011 as barred by limitation by Ext.P2 order passed
O.P.(C).No.4582 of 2013
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