Cheekilode Premalatha v. K. V. Abdurahiman

1 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 # **'C.R'** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 3[RD] DAY OF APRIL 2025 / 13TH CHAITHRA, 1947** **OP(C) NO. 368 OF 2017** **AGAINST THE ORDER/JUDGMENT DATED 05.01.2017 IN OS NO.463 OF 2004 OF II ADDITIONAL SUB COURT, KOZHIKODE** ## **PETITIONER/DEFENDANT:** **CHEEKILODE PREMALATHA, AGED 68 YEARS, W/O.LATE UNNI NAIR, AGED 68 YEARS, 5/2820, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **BY ADV R.RANJITH (MANJERI)** ## **RESPONDENT/PLAINTIFF:** **K.V.ABDURAHIMAN, S/O.K.V.HUSSAIN, AGED 55 YEARS, KAITHAVALAPPIL HOUSE, P.O.VENGERI, VENGERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 010.** 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 **BY ADVS. SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SRI.JAIMON ANDREWS SRI.SHYAM PADMAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 3 ## **'C.R'** ## **K.BABU, J** **------------------------------------------------O.P.(C).No.368 of 2017 ------------------------------------------------Dated this the 3[rd ] day of April, 2025** ## **JUDGMENT** The challenge in this Original Petition is to the common order dated 05.01.2017 passed by the Subordinate Judge's Court, Kozhikode, in I.A.Nos. 3204/2015, 4409/2015 and 1757/2016 in O.S.No.463/2004. 2. The petitioner is the defendant in a suit for specific performance of an agreement for sale. The respondent is the plaintiff. The trial Court decreed the suit on 31.08.2006, directing the defendant to execute the deed of conveyance on receiving the balance sale consideration. In the decree, the trial Court has also directed the plaintiff to deposit the balance sale consideration within three months from the date thereof. **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 4 3. The plaintiff preferred an appeal, RFA No.257/2007, before this Court challenging the trial Court's refusal to award the costs of the suit. This Court, as per judgment dated 16.10.2014, dismissed the appeal confirming the trial Court's judgment. 4. After the disposal of the appeal by this Court, it came to the notice of the plaintiff that the amount paid as advance sale consideration was not taken into consideration in the decretal portion. Therefore, on 29.12.2014, the plaintiff filed I.A.No.55/2015 under Section 152 of the Code of Civil Procedure to correct the decree. The trial Court allowed the application on 12.06.2015, and the decree was amended on the same day. On 01.07.2015, the plaintiff obtained a certified copy of the amended judgment and decree. On 21.07.2015, he deposited the balance sale consideration before the Court. 2025:KER:31226 5 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 5. The plaintiff filed I.A.No.3204/2015 and the draft sale deed to execute and register the sale deed in his name through the Court. 6. The defendant filed I.A.No.4409/2015 seeking rescission of the agreement dated 21.07.2004 under Section 28(1) of the Specific Relief Act. In the application, the defendant _inter alia_ contended that as per the decree dated 31.08.2006, the plaintiff must deposit the balance sale consideration within three months. 7. The defendant also filed I.A.No.1757/2016 for issuing a Commission to ascertain the present market value of the plaint schedule property, contending that as years have passed after the decree, the market value of the property was substantially escalated causing prejudice to her. 8. The trial Court dismissed all the above interlocutory applications as per the impugned common order . 6 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 9. I have heard the learned counsel for the petitioner/defendant and the learned Senior Counsel for the respondent/plaintiff. 10. The learned counsel for the petitioner/defendant submitted that as the plaintiff challenged the decree to the extent it refused to grant costs, there is no merger of the appellate decree. The learned counsel further submitted that even after passing the appellate decree without making an application for extension of time as contemplated in Section 28 of the Specific Relief Act, the plaintiff proceeded to get the sale deed executed. The learned counsel submitted that without extending the time specified by the decree, the Court could not proceed with the applications preferred by the decree-holder. 11. The learned Senior Counsel, relying on a series of precedents, contended that the doctrine of merger squarely applies to the facts of the case. The learned Senior Counsel relied on _**Brahmanand v. Rajan**_ [2012 (4) KLT 540] 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 _**Frederick Paul Manohar v. Mohanan**_ [2017 (1) KLT 417] and _**Surinder Pal Soni v. Sohan Lal**_ [(2020) 15 SCC 771] to support his contentions. 12. The Black’s Law Dictionary defines 'merger' as “(1) The act or an instance of combining or uniting. ……… (5) _Civil Procedure:_ The effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff’s rights are confined to enforcing the judgment.” 13. “Merger” means to sink or disappear in something else; be swallowed up, lose identity or individuality. (Marfield v. Cincinnati, D. & T. Traction Co., 144 N.E.689, 696, 111 Ohio St.139, 40 A.L.R 357). The doctrine of “merger”, under which cause of action is merged in judgment recovered, proceeds upon the principle that a superior right covers an inferior right, but the doctrine may be carried no further than ends of justice require. (Letcher County, Ky., v. De Foe, 2025:KER:31226 8 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 ## C.C.A.Ky.,151 F.2d 987, 991) { **Words and Phrases, West Publishing Co, Volume 27** }. 14. The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction [ **State of Madras v. Madurai Mills Co.Ltd** , (AIR 1967 SC 681)]. 15. The principle buttressing the doctrine of “merger” is that there cannot be more than one decree or operative order controlling or regulating a subject-matter. 9 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 16. The learned counsel for the petitioner relied on _**Kunhayammed v. State of Kerala**_ [(2000) 6 SCC 359] to support his contentions. 17. In _**Kunhayammed**_ , the Supreme Court observed thus:- “12.The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. 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 2025:KER:31226 O.P.(C).No.368 of 2017 10 **==> picture [58 x 57] intentionally omitted <==** forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.“ 18. Relying on _**Prem Jeevan v. K.S. Venkata Raman**_ [(2017) 11 SCC 57], the learned counsel for the petitioner submitted that in the absence of the time being extended by the trial Court, the decree-holder could not execute the decree by making the payment of decretal amount to the judgment-debtor or making the deposit in the court in terms of the said decree. 19. In _**Brahmanand Vs. Rajan**_ [2012 (4) KLT 540], while dealing with a decree granting specific performance, this Court, in paragraph 12 of the judgment, observed as follows:- “12…..It has to be borne in mind that the decree in the instant case was one for specific performance of a contract. It is well settled that even after the decree is affirmed in appeal by the Apex Court and there is a merger in the strict sense, even in a case where time for deposit is 2025:KER:31226 O.P.(C).No.368 of 2017 11 **==> picture [58 x 57] intentionally omitted <==** granted by the appellate court, extension of time for the said deposit can be granted by the trial court. It is not necessary that the person concerned should approach the appellate court for extension of time. This shows that even after the decree passed by the trial court is confirmed by the appellate court, the trial court does not become _functus officio_ and retains control over the matter. The power granted to the trial court under Ss.22 and 28 of Specific Relief Act are indications in this regard.” ## 20. In _**Frederick Paul Manohar v. Mohanan**_ [2017 (1) KLT 417], while dealing with a matter where the parties disputed the amount to be deposited as balance sale consideration, this Court held, in paragraph 9 of the judgment, as follows:- “9. It is seen from the section itself that a discretion has been vested in the court, even if time expired for payment of the amount as provided in the decree, the same can be extended by the court, permitting the plaintiff to pay the amount and get the document executed. It is seen from the allegations in the petition filed by the plaintiffs for O.P.(C).No.368 of 2017 12 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 getting the document executed as I.A. No.835/2014, that after Ext. P2 award, twice amounts have been paid namely Rs.50,000/- and Rs.80,000/- during 2012 and 2013 and the time was extended between the parties for execution of the document at the request of the defendant and since he had not prepared to receive the balance amount and execute the document, the plaintiffs sent a notice for which he had sent reply with false allegations and that prompted the plaintiffs to file the petition. There is no dispute regarding the fact that along with the petition, the plaintiffs have deposited amount which according to them due, namely Rs.7,15,000/-. They have expressed their intention to deposit the amount and produce the amount required for purchasing stamp paper etc. It is also seen from the order of the court below and also admitted both the counsel that on 13.2.2015, the court below had passed that the plaintiffs expressed their willingness to deposit the balance sale consideration and admitted by the defendant, permission is granted to get the deposit amount as well and the balance consideration was deposited by the plaintiff on getting permission. When the amount has been disputed between the parties and the court has permitted the balance amount to be deposited also for the purpose of 2025:KER:31226 13 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 granting permission to the plaintiff to get the document executed, then it can be presumed that the time has been extended by the court.” 21. In _**Surinder Pal Soni v. Sohan Lal**_ [(2020) 15 SCC 771], the Supreme Court observed that the doctrine of “merger” operates as a principle upon a judgment being rendered by the Appellate court. The Court held that once the appellate court renders its judgment, it is the decree of the appellate court which becomes executable. 22. In _**Surinder Pal Soni,**_ on the import of Section 28 of the Specific Relief Act, the Supreme Court observed that the provision gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial Court, which passes the decree of specific performance. In other words, when the court passes the decree for a specific performance, the contract between the parties is not extinguished. To put it clearly, the decree for specific performance is in the nature of a preliminary 2025:KER:31226 14 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 decree, and the suit is deemed to be pending even after the decree. 23. The indisputable position based on the precedents referred to above is that the decree passed by the trial Court merges with the appellate decree and that in the case of a decree for specific performance, the contract between the parties is not terminated, and the decree is in the nature of the preliminary decree. The suit is deemed pending even after the decree and the Court which passed the decree would not become _functus officio_ . 24. In the present case, as per the decree dated 31.08.2006, the plaintiff was directed to deposit the balance consideration within three months from the date thereof. The plaintiff preferred appeal as mentioned above, which ended in dismissal on 16.10.2014. Therefore, the judgment passed by this Court in RFA 15 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 No.257/2007 merged with the decree passed by the trial Court. Therefore, the time stipulated by the trial Court started to run from 16.10.2014. However, the plaintiff did not deposit the balance sale consideration within three months from 16.10.2014. 25. When it came to the notice of the decree-holder that the decree had not taken into account the advance sale consideration, the plaintiff was constrained to file I.A.No.55/2015, under Section 152 CPC seeking correction in the decree. This application was allowed on 12.06.2015 and necessary corrections were made therein. The trial Court held that a fresh period would commence from the date of the amended decree, that is., 12.06.2015. The plaintiff deposited the amount on 21.07.2015. The trial Court, therefore, held that there is no delay on the part of the plaintiff in depositing the balance sale consideration. 2025:KER:31226 16 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 26. The learned Senior Counsel submitted that the order correcting the decree as provided in Section 152 CPC would also amount to a merger of the original decree with the corrected decree. The learned Senior Counsel submitted that this is more so because in the case of specific performance, the Court which passed the decree does not become _functus officio_ . 27. The fundamental principle underlying the doctrine of “merger“, as discussed above, is that there cannot be more than one decree. When a decree passed by the trial court stood corrected, invoking the remedy available under the law, the original decree merges with the corrected decree. 28. Even otherwise, when the Court corrected the decree, it impliedly extended time as provided in Section 28 of the Specific Relief Act. **==> picture [58 x 57] intentionally omitted <==** 2025:KER:31226 O.P.(C).No.368 of 2017 17 29. The learned Senior Counsel also submitted that the _Maxim Actus Curiae Neminem Gravabit_ applies to the facts of the present case as inadvertent omission on the part of the Court compelled the plaintiff to file I.A.No.55/2015 seeking the correction. Therefore, the time as stipulated in the statute starts from the date of the corrected decree. 30. In view of the above discussion, the prayer of the defendant seeking rescission of the contract is not sustainable. Having found that the prayer for rescission of the contract was not sustainable, the trial Court dismissed the application seeking the issue of a Commission on the ground that the market value of the property had escalated. The plaintiff deposited the balance sale consideration in compliance with the directions of the trial Court. 2025:KER:31226 18 **==> picture [58 x 57] intentionally omitted <==** O.P.(C).No.368 of 2017 31. I find no reason to interfere with the common order impugned exercising jurisdiction under Article 227 of the Constitution of India. The Original Petition stands dismissed. Sd/- **K.BABU JUDGE** kkj 2025:KER:31226 O.P.(C).No.368 of 2017 19 **==> picture [58 x 57] intentionally omitted <==** ## **APPENDIX OF O.P(C) 368/2017** **PETITIONER EXHIBITS** **EXHIBIT P1. TURE COPY O THE AGREEMENT FOR SALE DATED 21.07.2004 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT.** **EXHIBIT P2. TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.3204/2015 IN O.S.NO.463/2004 BY THE RESPONDENT.** **EXHIBIT P3. A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER HEREIN I.A.3204/2015 IN O.S.NO.463/2004.** - **EXHIBIT P4. TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.NO.4409/2015 IN O.S.NO.463/2004 BY THE PETITIONER HEREIN.** **EXHIBIT P5. TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT HEREIN TO I.A.NO.4409/2015 IN O.S.NO.463/2004.** - **EXHIBIT P6. TRUE COPY OF I.A.1757/2016 IN O.S.NO.463/2004 FILED BY THE PETITIONER HEREIN.** **EXHIBIT P7. TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT HEREIN TO I.A.1757/2016 IN O.S.NO.463/2004.** **EXHIBIT P8. TRUE COPY OF THE COMMON ORDER DATED 05.01.2017 PASSED BY THE SUB COURT, KOZHIKODE IN EXTS.P2, P4 AND P6 PETITIONS.**