Ramkrishna Narayan Khedkar vs Shrikrishna Nagorao Zade

A.B. Chaudhari, J.—Civil Revision Application No. 17 of 2013 is taken up first for hearing and disposal, since the outcome thereof would govern the other matter, namely Civil Revision Application No. 75 of 2013. In Civil Revision Application No. 17 of 2013, the Judgment Debtor has put to challenge the Order dated 30th September, 2010 passed by learned Civil Judge (Junior Division), Achalpur, below Exh. 17 in Regular Darkhast No. 36 of 2009, inter alia, on the ground that the decree sought to be executed was barred by Article 136 of the Limitation Act, in the sense that while the decree was passed on 14th December, 1987, it was sought to be executed in 2009, i.e., almost after twenty-two years.

Learned Adv. Mr. S.R. Deshpande for the Judgment Debtor vehemently argued that the said objection of execution being barred by limitation was specifically raised and, therefore, u/s 3 of the Limitation Act, it becomes a duty of the Court to dismiss the execution, if it is barred by limitation, even if the party does not raise the issue of limitation. He then argued that at any rate, there was no stay order in the appellate proceedings before this Court and, therefore, the decree holder was never prevented from putting the decree to execution. But then he lost the time for over a period of twenty-two years and hence the objection ought to have been upheld and the execution proceedings ought to have been dismissed on the ground of limitation. He then argued that the violation of Prevention of Fragmentation and Consolidation of Holdings Act was also brought to the notice of the Court in the said objection.

Per contra, learned Adv. Mr. J.J. Chandurkar for the decree holder argued that the decree, in question, had only the character of a Preliminary Decree in view of the precept contemplated u/s 54 of the Civil Procedure Code, for execution of a decree in respect of land assessed to land revenue and, therefore, until and unless the Tahsildar makes an effective partition as per the Partition Rules, 1967, the decree cannot be a final decree. Learned Adv. Mr. Chandurkar also cited a decision of the Supreme Court in the case of Chandi Prasad and Others Vs. Jagdish Prasad and Others, as referred to in the Judgment of a Single Judge of this Court in the case of Somnathappa Vs. Kamalbai, , and argued that the doctrine of ''merger'' will come into play.

Learned Adv. Mr. V.M. Deshpande for the applicant in Civil Revision Application No. 75 of 2013 supported the submissions advanced by learned Adv. Mr. S.R. Deshapande for the applicant in Civil Revision Application No. 17 of 2013.

I have heard learned counsel for the rival parties and perused the record, so also the impugned orders in both these matters.

So far as the objection regarding violation of the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act is concerned, the objection was raised merely for the sake of raising it and without any elaboration. It is not necessary to deal with the same.

Insofar as the aspect of limitation under Article 136 of the Limitation Act is concerned, admittedly the land for which execution was put by the decree holder is assessed to land revenue and as far as section 54 of the Civil Procedure Code, is concerned, law is trite that it is the Tahsildar acting under the Partition Rules, 1967 after receipt of precept, proceeds to effect the partition without transgressing the Civil Court''s decree and then makes a final decree by putting the parties in possession of the property.

Admittedly, in the instant case, it was only a preliminary decree after a precept u/s 54 was issued to Tahsildar that was being put to execution. Therefore, the submission that the limitation provided by Article 136 is twelve years should be computed from the date of preliminary decree is misconceived.

That apart, the objection raised by the applicant is not elaborated, in the sense that whether any stay order or any other order was obtained in the Appellate Court. Even otherwise, in the light of the decision in the case of Chandi Prasad (cited supra), the said aspect loses significance. I quote the position of law described in paragraphs 18 to 24 from the said decision in the case of Chandi Prasad, as follows;--

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.

Article 136 substantially reproduces the provisions of section 48(1) of the CPC 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 instead and place governing each of the several execution applications which the decree holder can make within a period of 12 years.

It is not disputed that all decrees; be it original or the appellate, 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 or money or delivery of any property at a certain date would be considered to be the starting period of limitation.

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, ).

When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues.

MERGER:

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 distinction between an order of reversal, modification of ah order of confirmation passed by the Appellate Authority. The said doctrine postulate that there cannot be more than one operative decree governing the same subject-matter at a given point of time.

(Underlines supplied)

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 SLP 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, ).

(Underlines added)

In the light of the above legal position therefore, it will have to be held that the execution was not barred by limitation as contended. Hence the following order:--

ORDER

Civil Revision Application Nos. 17 and 75 both of 2013 are rejected.

In the circumstances of the case, there shall be no order as to costs.