This appeal is directed against the judgment dated 22.01.2007, passed by the learned Single Judge of the High Court of Judicature at Madras in C.R.P. (NPD) No. 1829 of 2006. By the impugned judgment, the High Court while dismissing the revision petition has confirmed the orders of the Executing Court dated 1.11.2006 in E.A. No. 3570 of 2006 in E.P. No. 249 of 2006 in O.S. No. 649 of 1977.
2. The suit was filed by the plantiffs/respondents for recovery
of possession and arrears of rent against the defendant/appellant
The appellant was a tenant of the respondents. The property
in question is a residential house. The Trial Court, the first
Appellate Court and the High Court have concurrently concluded
that the plantiff is entitled to get possession of the suit property
and arrears of rent. Thus, the suit was decreed against the
tenant by such concurring judgments. Thereafter, an execution
petition was filed in 2006 for executing the decree.
The only question raised by the learned advocate for the
appellant in this appeal is that the execution petition filed in the
year 2006 is barred by limitation inasmuch as the same was not
filed within 12 years from the date of the judgment of the Trial
Court, i.e., dated 14.08.1981.
3. In sum and substance, the case of the appellant is that the
execution petition ought to have been filed within 12 years from
the date of the judgment of the Trial Court without waiting for the
decision of the First Appellate Court or the Second Appellate
Court. He has also submitted that there is no interim order
granted by the First Appellate Court and the Second Appellate
Court. There was no hurdle for the respondents to file the
execution petition within the prescribed period of limitation after
the judgment of the Trial Court. It is submitted by the decree
holder that the decree of the Trial Court and the first Appellate
Court have merged in the decree of the High Court passed in
second appeal. It is further submitted that the order of stay was
operating in favour of the judgment debtor/debtor during the
pendency of the appeals and hence the judgment debtor
continued in possession.
4. It is not in dispute that the execution petition has been filed
within time from the date of the judgment of the High Court. The
High Court dismissed the second appeal on 30.12.2003. The
execution petition was filed in July 2006. Thus, undisputedly,
the execution petition was within the period of limitation from the
date of the judgment of the High Court.
5. 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 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.
6. 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.
(MOHAN M. SHANTANAGOUDAR)
October 24, 2018
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