Shanthi vs T.D.Vishwanathan And Ors

SHANTHI ...Appellant

Versus

T.D. VISHWANATHAN AND OTHERS ...Respondents

ORDER

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.

1

2. The suit was filed by the plantiffs/respondents for recovery

of possession and arrears of rent against the defendant/appellant

herein.

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

2 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

3 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

4 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.

........................J. (N.V. RAMANA)

........................J. (MOHAN M. SHANTANAGOUDAR) New Delhi, October 24, 2018

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