1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8635 OF 2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. H.H.Padalkar, Advocate for Petitioner. Mr. Rahul Joshi, Advocate for Respondent. ........................... [ CORAM : B.R.GAVAI, J. ] DATE : 18/12/2009. PER COURT : 1. By way of present petition, the petitioner challenges the Order passed by the learned Civil Judge (J.D.), Bhokardan dated 6/11/2009, thereby rejecting the objection filed by the present petitioner in the execution proceedings initiated by the respondent/Decree Holder. 2. A Suit for decree of possession came to be decreed in favour of respondent on 28/10/1983. The said decree was challenged by way of Appeal before the learned District Judge. The 2 Appeal was rejected. A Second Appeal preferred before this Court was also dismissed on 26/3/2009. Thereafter, execution proceeding was filed by the Decree Holder on 5/5/2009. In the said execution proceeding, an objection was raised by the petitioner that the execution proceedings ought to have been filed within 3 months from the date of decree and as it was not so filed, it was barred by limitation. Said objection is rejected. Hence, present petition. 3. Mr. Padalkar, the learned counsel appearing on behalf of petitioner submits that since in the decree passed by the learned trial court, it is specifically provided that the defendant was to hand over the possession of the suit land to the plaintiff within 3 months, it was incumbent upon the respondent/decree holder to file execution proceeding within the period of 3 months. He submits that the respondent ought not to have waited till the orders were passed by the District Court and the High Court. He relies on the Judgment of the Apex Court in the case of Manohar & Others V/s Jaipalsing & Others – 2008 (1) 3 Bom.C.R. 53. 4. Mr. Joshi, the learned counsel appearing on behalf of respondent submits that the learned executing court has rightly rejected objection. 5. It is settled law that the orders passed by the trial court merge in the decree of the appellate court. It is also settled law that Appeal is the continuation of the Suit. It can thus clearly be seen that the decree of the trial court has merged into the Judgment and Order passed by this Court dated 26/3/2009. Thereafter, immediately, the proceedings for execution have been filed by the respondent. 6. In so far as the reliance placed by the learned counsel appearing on behalf of petitioner on the Judgment of the Apex Court is concerned, it could be seen that in the said case, a decree was passed by the High Court in Second Appeal in the year 1983. A Review Petition challenging the said order was also rejected. Challenging the rejection of review petition, the S.L.P. Came to be filed before the Apex Court. In the said 4 S.L.P., the Apex Court initially had granted stay. Subsequently, the said S.L.P. was dismissed. Thereafter, an application for execution of the decree was filed by the decree holder on 10/12/2001. An objection regarding maintainability of execution proceedings was raised. The same was rejected by the executing court and confirmed by the High Court. However, the Apex Court found that the stay which was granted by the Apex Court was only against the order of refusing to review the Judgment and not against the decree dated 2/9/1983. In that view of the matter, the Apex Court found that the Order of stay granted by it was also of no assistance to the case of decree holder. 7. Same is not the case here. The decree passed by the trial court was stayed by the District Court as well as this Court and as such the said Judgment would not be of any assistance to the case of the petitioner. 8. The learned Judge applying the principle of merger of decree in the Judgment and Order of the appellate court, has found that the execution 5 proceedings are within limitation. As such, no perversity is noticed in the impugned order. Hence rejected. [ B.R.GAVAI ] JUDGE knp/WP8635.09