1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:26.04.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(NPD)(MD)Nos.738 & 739 of 2011 & M.P(MD)No.1 of 2011 IN C.R.P(NPD)(MD)No.738 OF 2011 C.R.P.(NPD)(MD)Nos.738 & 739 of 2011 1.Rethinammal 2.S.Easwari 3.S.Revathi 4.S.Marthandam 5.S.Chandra 6.S.Thamaraiselvi 7.S.Mohan 8.S.Karunakaran ..Petitioners/Petitioners in E.A / Respondents in EP/ Defendants in the suit in both CRPs -Vs- 1.R.Swaminathan 2.R.Ganesan 3.R.Rajasekaran 4.Lakshmi 5.R.Shantha 6.R.Panchapakesan ..Respondents/ Respondents in E.A/ Petitioners in E.P./ Plaintiffs in the suit in both CRPs PRAYER IN CRP.(NPD)(MD)NO.738 of 2011: Civil Revision Petition filed under Section 115 of Code of Civil Procedure, to set aside the order passed by the learned Principal Subordinate Judge, Thanjavur, dated 23.03.2011 in the Execution Application in E.A.No.24 of 2011 in E.P.No.27 of 2010 in O.S.No.44 of 2005. PRAYER IN CRP.(NPD)(MD)NO.739 of 2011: Civil Revision Petition filed under Section 115 of Code of Civil Procedure, to set aside the order passed by the learned Principal Subordinate Judge, Thanjavur, dated 23.03.2011 in the Execution Application in E.A.No.28 of 2011 in E.P.No.27 of 2010 in O.S.No.44 of 2005. For Petitioners in both CRPs :Mr.S.K.Mani For Respondents in both CRPs :Mr.R.Rajaraman for R2 https://hcservices.ecourts.gov.in/hcservices/ 2 COMMON ORDER C.R.P.(NPD)(MD)No.738 of 2011 The Judgment-Debtors are before this Court challenging the order passed in application to take up the execution petition at the end of six months period from 07.01.2011, on which date S.A.No.195 of 2010 was dismissed. 2.The only point to be decided is, whether the time granted to vacate would start run from the original decree or from the date of this Court's order. 3.The respondents/plaintiffs filed a suit for vacant possession and the said suit was decreed on 19.11.2007, granting six months time to the petitioners herein. 4.Against the decree of the trial Court, A.S.No.08 of 2008 was filed and the same was dismissed. The said decree is un-successfully challenged before this Court in S.A.No.195 of 2010 on 07.01.2011. 5.Therefore, the respondents filed execution petition and the delivery warrant was issued. At that time, the petitioners filed the above petition contending that six months time is available to vacate the premises from the date of dismissal of the Second Appal. The said petition was dismissed and the same is challenged before this Court. 6.Heard the parties. 7.It is an admitted fact that the suit was dismissed on 19.11.2007 and confirmed by the appellate Court on 31.08.2008. Further, the decree was confirmed in S.A.No.195 of 2010 on 07.01.2011. The trial Court granted six months time to vacate the premises. Once, the appellate Court confirms the decree granted by the trial Court, the trial Court's decree merges with the appellate Court and the time to vacate the premises starts from the date of the appellate Court and not from the date of the trial Court. 8.In view of that, the trial Court erroneously held that limitation to vacate the premises starts from the date of the trial Court decree. As per Doctrine of merger the trial Court decree merges with the appellate Court. Therefore, the petitioners are entitled six months time to vacate the premises from the date of order passed in Second Appeal. In view of that the trial Court order is set aside. 9.The judgment was passed in S.A. on 07.01.2011 and time to vacate the premises ends on 06.07.2011. Therefore, the petitioners are directed to hand over the possession on 06.07.2011. To that effect the petitioners already filed an affidavit of undertaking to vacate the premises within two months and 17 days, as the affidavit was filed on 19.04.2011. In any event, the petitioners are directed to hand over the possession on 06.07.2011 and till such time, this Court directs the execution Court to defer the delivery warrant. In case, the petitioners failed and neglected to vacate the premises by 06.07.2011, the execution Court is directed to issue warrant of delivery with necessary police protection on 07.07.2011. https://hcservices.ecourts.gov.in/hcservices/ 3 10.With the above direction, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. C.R.P.(NPD)(MD)No.739 of 2011:-In view of the order passed in C.R.P(NPD) (MD)No.738 of 2011, no order is necessary in C.R.P(NPD)(MD)No.739 of 2011 and the same is closed. No costs. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To 1. The Principal Subordinate Judge, Thanjavur, 2. The Additional Subordinate Judge, Thanjavur. +1CC TO MR.R.RAJARAJAN, ADVOCATE SR.15157 +1CC TO MR.J.K.MANI, ADVOCATE SR.15161 Gsr SR : 14.06.2011 : 3p/5c C.R.P(NPD)(MD)Nos.738 & 739 of 2011 26-04-2011 https://hcservices.ecourts.gov.in/hcservices/