NANU RAJAN and others v. K.G. THOMAS (deceased) and M.K. JOSEPH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 CRP.No. 614 of 2005() --------------------AGAINST THE ORDER DATED 26/05/2005 IN EP. 105 /2004 IN OS.305/1977 of MUNSIFF COURT, KOTTARAKKARA .................... REVN. PETITIONER(S): PETITIONERS: --------------------------------- 1. NANU RAJAN, THANNIVILA VEEDU, PORIYAKKOTTU. 2. NANU RAGHAVAN, DO. DO. 3. NANU RAJAPPAN, SURAJ BHAVAN, DO. 4. CHELLAMMA RADHA OF DO. NOW RESIDING AT BALAKESH BHAVAN, PULICHIRA, MAYYANADU, KOTTIYAM. 5. CHELLAMMA RAJAMMA OF DO. NOW RESIDING AT NITHISH BHAVAN, PULIYILA, PALLIMON P.O., NEDUMPANA VILLAGE. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): - --------------- 1. K.G. THOMAS (DIED), S/O. JOSEPH KATHANAR NJAPPANKOTTU VEEDU, KOZHIKODU MURI, POOYAPPALLY VILLAGE, NOW RESIDING AT MOUNT HOUSE, KOZHIKODU MURI, POOYAPPALLI VILLAGE. 2. M.K. JOSEPH, MANAPURATHU VEEDU, KOZHIKODU MURI, POOYAPPALLY VILLAGE. ADV. SRI.KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 6/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-------------------------------------------C.R.P. NO. 614 OF 2005 G -------------------------------------------Dated this the 6[th] March, 2008** ## **O R D E R** Judgment debtors 3 to 7 challenge the order passed by the executing court holding that the Execution Petition is not barred by limitation. 2. The trial court passed the decree on 21.7.1981. The decree was for declaration of title and recovery of possession. A.S.No.5 of 1983, the appeal filed by the defendants, was allowed and the case was remanded to the trial court. After remand, the trial court again decreed the suit on 4.1.1992. A.S.No.64 of 1992 was filed by the defendants challenging the judgment and decree of the trial court. That appeal was dismissed for default on 22.9.2003. During the pendency of A.S.No.64 of 1992, there was no stay of execution. 3. The decree holders filed Execution Petition No.105 2004 on 27.9.2004. The judgment debtors opposed the application and contended that the Execution Petition is time barred. According to the judgment debtors, the relevant date with reference to which the period of limitation is to be reckoned is 4.1.1992 while, according to the decree holders, the C.R.P.NO.614 OF 2005 :: 2 :: relevant date with reference to which the period of limitation is to be reckoned is 22.9.2003, the date of dismissal of the appeal for default. The court below held that though A.S.No.64 of 1992 was dismissed for default, there was merger of the decree of the trial court in the appellate decree and, therefore, the Execution Petition was filed well within time. It is the order of the executing court that is under challenge in this Civil Revision Petition. 4. Learned counsel for the petitioners submits that dismissal of the appeal for default does not amount to a decree within the meaning of Section 2(2) of the Code of Civil Procedure and, therefore, there is no merger. He also pointed out that under Order XLI Rule 5 of the Code of Civil Procedure, an appeal shall not operate as a stay of the proceedings under a decree or order appealed from unless the Appellate Court grants an order of stay. The counsel pointed out that there is a marked difference between Article 182 of the Limitation Act, 1908 and Article 136 of the Limitation Act, 1963. According to him, there is no scope for availing the period of pendency of the appeal to be excluded from computing the period of limitation in filing the execution petition, unless the Appellate Court had granted a stay of execution or unless the appeal was disposed of on the merits. Learned counsel for the petitioners relied on the decisions in **Ratansingh** v. **Vijaysingh and others** ((2001) 1 SCC C.R.P.NO.614 OF 2005 :: 3 :: 469), **Manohar** v. **Jaipalsingh** ((2008) 1 SCC 520) and **Chandi Prasad and others** v. **Jagdish Prasad and others** ((2004) 8 SCC 724). 5. Learned counsel for the respondents/decree holders contended that by filing an appeal, the matter becomes sub judice and the decree holders cannot be found fault with for not getting the decree executed when it is not certain whether he would succeed in the appeal. He relied on the decisions in **Nagendra Nath Dey and another** v. **Suresh Chandra Dey and others** (AIR 1932 Privy Council 165) and **Kamalamma** v. **Trivandrum Permanent Bank** (1986 KLT 1181). ## 6. In **Ratansingh** v. **Vijaysingh and others (** (2001) 1 SCC 469), a Two Judge Bench held that the mere fact that the second appeal was dismissed as a corollary to the dismissal of an application for condonation of delay has no effect on the decree passed by the first appellate court. In the case before the Supreme Court, the trial court passed the decree on 14.12.1970, the appeal was dismissed on 1.8.1973 and the execution petition was filed on 24.3.1988. It was contended that the appellate decree was carried in further appeal before the High Court and the High Court had dismissed the application for condonation of delay in filing the second appeal and consequently, dismissed the appeal on 31.3.1976. It was, therefore, contended that the execution petition was filed well within C.R.P.NO.614 OF 2005 :: 4 :: time. This contention was rejected by the Supreme Court holding thus: “8. When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression “enforceable” has been used to cover such decrees or orders also which become enforceable subsequently. 9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower court then it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower court decree continues to be enforceable. ## xxxx xxxx xxxx 11. In order that a decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. ....” ## 7. In **Chandi Prasad and others** v. **Jagdish Prasad and others** ((2004) 8 SCC 724), preliminary decree for partition was passed on 25.4.1962, the final decree was passed on 7.5.1968 and the appeal filed against the final decree was dismissed on 21.3.1969. The second appeal therefrom was allowed and the case was remanded to the First Appellate Court. The First Appellate Court again dismissed the appeal on 4.1.1974. C.R.P.NO.614 OF 2005 :: 5 :: The Second Appeal therefrom was dismissed by the High Court on 18.4.1985. Execution Petition was filed on 26.3.1997. It was contended that the Execution Petition was barred by limitation. The Supreme Court held that: “Where a statutory appeal is provided for, subject, of course to the restrictions which may be imposed, it is a 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.” It was also held by the Supreme Court thus: “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 the 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_ v. _State of Bombay_ .) 22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues. 23. The doctrine of merger is based on the principles of 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. 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 C.R.P.NO.614 OF 2005 :: 6 :: 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. (P) Ltd._ v. _CIT._ )” The Supreme Court also relied on the decision in **Kunhayammed** v. **State of Kerala** ((2000) 6 SCC 359). 8. Though a reference was made to a Larger Bench in _**Chandi Prasad's case**_ doubting the correctness of the decision in _**Ratansingh's case**_ , the Supreme Court did not state whether _Ratansingh's case_ was correctly decided. It was held that _Ratansingh's case_ has no application in the case as the High Court had drawn up a formal decree of dismissal of the Second Appeal. 9. In **Manohar** v. **Jaipalsingh** ((2008) 1 SCC 520), the Supreme Court considered the question whether the doctrine of merger would apply when a Review Petition is dismissed. It was held thus: “13. It is also incorrect to contend that in a case of this nature, namely, where a review petition was dismissed, the doctrine of merger will have any application whatsoever. 14. It is one thing to say that the respondent was entitled to file an application for review in terms of Section C.R.P.NO.614 OF 2005 :: 7 :: 114 read with Order 47 Rule 1 of the Code of Civil Procedure, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree.” ## 10. Reliance was placed on the decision of the Privy Council in ## **Nagendra Nath Dey and another** v. **Suresh Chandra Dey and others** (AIR 1932 Privy Council 165) by the learned counsel for the decree holders. In that decision, the Privy Council held that fixing the period of limitation must always be, to some extent, arbitrary and may frequently result in hardship. It was held thus: “... It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court.” ## 11. In **Kamalamma** v. **Trivandrum Permanent Bank** (1986 KLT 1181), the learned single Judge of this Court relied on the decision of the Privy Council in **Nagendra Nath Dey and another** v. **Suresh Chandra Dey and others** (AIR 1932 Privy Council 165). The Privy Council's decision as well as the case of Kamalamma arose under the Limitation C.R.P.NO.614 OF 2005 :: 8 :: Act, 1908. Under the 1908 Act, the third column of the Schedule, in so far as Article 182 was concerned, consisted of six parts. The relevant portion of Article 182 reads as follows: “182. For the execution of a Three years; or 1. The date of the decree decree or order of any where a certified or order, or Civil Court not provided copy of the decree2. (where there has been for by Article 183 or by or order has been an appeal) the date of Section 48 of the Code registered, six the final decree or of Civil Procedure,1908. Years. Order of the Appellate Court, or the withdrawal of the appeal, or” Article 136 of the Limitation Act, 1963 provides a period of limitation of twelve years for execution of a decree (other than a decree granting mandatory injunction) or order of any Civil Court. The time from which the period begins to run is “when the decree or order become enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place”. Article 136 does not make any specific provision for excluding the period during which an appeal was pending and which was subsequently disposed of on the merits or withdrawn as provided in Article 182 of the Act of 1908. 12. The Supreme Court has taken the view in various cases, ## C.R.P.NO.614 OF 2005 :: 9 :: including the cases referred to above, that when an appeal is disposed of on the merits, there is a merger of the decree in the appellate decree and the decree which would be executable is the appellate decree. Though Article 136 does not speak of pendency of an appeal as provided in Article 182 of the Act of 1908, the principles are well settled that pendency of an appeal would be relevant provided, the appeal was subsequently disposed of on the merits. When the appeal is dismissed on the ground of default, there would be no decree and in such cases, it cannot be said that there was merger. In the case on hand, there is no dispute that the appeal was dismissed for default. If the date of decree of the trial court is taken as the relevant date for reckoning the period of limitation, the execution petition would clearly be barred. I am of the view that the court below was not right in holding that the period of limitation is to be reckoned from 22.9.2003, the date of dismissal of the appeal for default. To my mind, the order passed by the court below requires to be set aside. The Civil Revision Petition is allowed and the order impugned is set aside. No order as to costs. **(K.T.SANKARAN) Judge** ahz/