1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 272 OF 2010 1. Mr. Joaquim Borges, r/o E-37, Povocao, Nuvem, Salcete-Goa. 2. Mr. Alfred Borges(deceased) now represented by his wife, Mrs. Luiza Borges, R/o Villa No.16, Airport Road, Chicalim, Mormugao-Goa. ... Petitioners versus Mr. Pedro Dias, R/o House No.1, Near Panchayat Office, Nuvem, Salcete-Goa. ... Respondent Shri A. F. Diniz, Advocate for the Petitioners. Shri Nigel da Costa Frias, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 3RD AUGUST, 2010. JUDGMENT Rule. By consent heard forthwith. 2. This Writ Petition is directed against Order dated 22-2-2010 of the learned Civil Judge, Junior Division, Margao, in Regular Execution 2 Application No.7/09/E, by which the application for execution filed by the decree holders has been dismissed on the ground that the same is barred by law of limitation under Article 135 of the Limitation Act, 1963. 3. There is no dispute as to the facts, some of which could be stated. 4. Regular Civil Suit No.153/93/C filed by the decree holders was decreed by Judgment dated 31-8-2000. An appeal filed therefrom, being Regular Civil Appeal No.171/2000, was dismissed on 13-10-2004. The Second Appeal filed therefrom, being Second Appeal No.21/2005 was dismissed on 22-9-2005. This Second Appeal was dismissed by this Court in limine, without notice to the judgment debtor. However, it appears that the Judgment in Second Appeal No.21/2005 dated 22-9-2005 was not placed before the executing Court. 5. The plaintiffs-decree holders had filed the suit (a) for a mandatory injunction directing the defendant to demolish the said shed/rooms and to restore the land to its original state, (b) for an order directing the defendant to remove himself from the said property of the plaintiff along with his friends, agents, family members, and servants, and (f) for mesne profits of Rs.300/- per month from 10-3-1993 till the defendant demolishes the said 3 shed/rooms. The suit was filed with the allegation that the plaintiffs were in possession of the suit property and the Defendant on humanitarian grounds was allowed to carry on the trade of repairs of cycles on a small space on the southern side of the property without consideration as a mere licensee but he, in March, 1993 had constructed illegally a shed in the property of the plaintiffs and without the knowledge of the plaintiffs and permission from the authorities. 6. The suit came to be decreed in terms of prayers (a), (b) and (f) (part). As already stated, the appeal filed from the Judgement/Decree also came to be dismissed. 7. The decree holders filed Execution Application on or about 20-8-2000. The judgment debtor raised objections on 24-7-2009 on the ground that the execution was barred by limitation and the Decree in Regular Civil Suit No.153/93/C could not be executed. The said objections have been upheld by the impugned Order of the learned executing Court who has come to the conclusion that the plaintiff was in possession of the suit property as the Defendant was a mere licensee. However, the learned executing Court came to the conclusion that as the decree was for mandatory injunction the same was barred under Article 135 of the Limitation Act. 4 8. As far as the Limitation Act, 1963 is concerned, it may be noted that Article 135 provides a period of three years for the enforcement of a decree granting a mandatory injunction from the date of the decree or where a date is fixed for performance, such date. Article 136 provides a period of 12 years for execution of any decree(other than a decree granting a mandatory injunction) or order of any Civil Court from the date when the decree or order becomes enforceable, etc. 9. Shri A. F. Diniz, learned Counsel appearing on behalf of the decree holders submits that the decree of the trial Court dated 31-8-2000 is now merged in the decree of this Court dated 22-9-2005 and the application for execution filed by the decree holders on 20-8-2005 was within the period of limitation set out by Article 135 of the Limitation Act. Next, learned Counsel submits that the relief sought by the decree holders by virtue of para (b) of the plaint was in substance a prayer for recovery of possession, and, therefore the application would still be in time, the period prescribed being of 12 years. 10. As regards the first submission, Shri Diniz, learned Counsel has placed reliance on the Judgment of this Court in the case of Ramkrishna Bajirao Gotmare v. Kanhaiyalal Tribhuwanlal Shah(1990(2) Mh.L.J. 897) wherein this Court has observed that the conclusion is inevitable and it is 5 consistent legal position that an appellate decree supersedes the original decree on the basis of doctrine of merger, and only that superseded decree is enforceable, and even in a case of doubt, the benefit must go to the decree holder for whom obtaining a decree is generally a difficult task and realizing the fruits of the decree a distant dream. 11. On the other, Shri Nigel da Costa Frias, learned Counsel appearing on behalf of the judgment debtor has submitted that the First Appeal against decree dated 31-8-2000 was dismissed on 13-10-2004 and the decree being of mandatory injunction had to be filed within three years in terms of Article 135 of the Limitation Act. Learned Counsel submits that the present application was filed by the decree holders on 20-8-2008. Learned Counsel submits that the decree holders had no notice of the Second Appeal inasmuch as there was no stay of execution granted by any Court and the decree holders were free to execute the decree after the Judgment of the first appellate Court on 22-9-2005 though there was a stay granted by the first appellate Court against Judgment/decree of the trial Court dated 31-8-2000. Learned Counsel submits that the decree holders took risk in not executing the decree for three years, and, therefore should suffer the consequences of limitation. Learned Counsel submits that in case this Court had granted stay of execution then the matter would have been different. 6 12. Learned Counsel Shri Costa Frias has placed reliance on the case of M/s. Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh(AIR 1974 SC 1380) wherein it is stated that in cases where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate Court and not of the trial Court. Reliance is also placed on the case of West Bengal Essential Commodities Supply Corpn. v. Swadesh Agro Farming & Storage Pvt. Ltd. and another((1999) 8 SCC 315) wherein the Apex Court observed that a decree or order is said to be enforceable when it is executable. Shri Costa Frias submits that the decree was executable from 13-10-2004, and there was no stay of execution of the decree till the Second Appeal came to be dismissed on 22-9-2005. Learned Counsel has also placed reliance on Manohar Shankar Nale and others v. Jaipalsingh Shivlalsing Rajput and others(IR 2008 SC 429) wherein the Apex Court has held that where a review petition is dismissed, the doctrine of merger will have no application whatsoever. In this case, it was observed by the Apex Court that it is one thing to say that the judgment debtor was entitled to file an application for review in terms of Section 114 read with Order 47 Rule 1, C.P.C. but it is another thing to say that the decree passed in favour of the decree holder merged with the order dismissing the review application. Reliance is also placed on the case of Ratansingh v. Vijaysingh and others(AIR 2001 SC 279). That was a case of rejection of application for condonation of delay and the Apex Court held that 7 the order rejecting the memorandum of appeal in such circumstances is merely an incidental order. 13. However, Shri Diniz, learned Counsel appearing on behalf of the decree holders has been quick to point out that the Division Bench Judgment of the Apex Court in the case of Ratansingh v. Vijaysingh and others(supra) was considered by the Full Bench of the Apex Court in the case of Chandi Prasad v. Jagdish Prasad(2004(7) Supreme 121) and was not followed. 14. The Full Bench in Chandi Prasad v. Jagdish Prasad(supra) has held that 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 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. 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 special leave petition is dismissed 8 summarily, doctrine of merger does not apply but when an appeal is dismissed, it does(emphasis supplied). 15. In my view, the law laid down by the Apex Court in the case of Chandi Prasad v. Jagdish Prasad(supra) is applicable to the facts of this case. The Judgment/Decree of this Court dated 22-9-2005 has now merged with the Judgment/Decree of the trial Court dated 31-8-2000 and the computation of limitation of three years assuming that the suit was for mandatory injunction had to be computed from 22-9-2005 and the application which was filed on 20-8-2008 was well within time in terms of Article 135 of the Limitation Act. It is to be noted that this is not a case where an application for condonation of delay was rejected, nor a case where review application was rejected or a case where a special leave petition is dismissed summarily. Therefore, the learned executing Court was not right in rejecting the application for execution. 16. The second submission of the decree holders is that in substance prayer (b) of the plaint was for eviction and possession of the suit property from the Judgment debtor and the period prescribed for execution was 12 years in terms of Article 136 of the Limitation Act. In this regard, Shri Diniz, learned Counsel on behalf of the decree holders has placed reliance on the 9 Judgment of the Division Bench of this Court in the case of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel(AIR 1980 Bombay 123). 17. On the other hand, Shri Costa Frias, learned Counsel, has placed much emphasis on prayer (b) of the plaint in terms whereof the suit was decreed and submitted that the decree holders had not sought recovery of possession of the suit property although the decree holders had sought for a mandatory injunction directing the Defendant to remove himself from the said property of the plaintiffs along with his friends, agents, family members and servants. Shri Frias therefore submits that the Judgment of this Court in Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel(supra) is distinguishable in that in the case of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel(supra) there was a prayer to hand over vacant and peaceful possession of the disputed flat to the plaintiff. 18. The Division Bench in the case of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel(supra) observed that prayer (a) of the plaint was for a declaration that the Defendant was a trespasser upon and in respect of the said flat and that he has no right, title or interest to remain or continue to remain in use and occupation or possession thereof. Prayer (b) of the plaint was for mandatory injunction to direct the Defendant to forthwith remove himself, his servants, and agents, together with his belongings, from the said 10 flat and to hand over vacant and peaceful possession of the said flat to the plaintiff. Prayer (c) of the plaint was for a sum of Rs.35,625/- claimed by way of damages from June 1, 1970 till the date of the filing of the suit at the rate of Rs.375/- per month. Prayer (d) of the plaint was for Rs.375/- per month or such other sum as the Court may think fit by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat from the date of the filing of the suit till vacant and peaceful possession of the said flat is handed over to the plaintiff. 19. Considering the said prayers, the Division Bench held that prayer (b) of the plaint, in the guise of a prayer for a mandatory injunction against the defendant to remove himself from the said flat, is in substance no other than a prayer for the recovery of possession of the said flat. Realizing fully well that the proper relief to pray for would be a decree or order for possession but at the same time being desirous of bringing the suit in this Court(High Court) and simultaneously not wishing the suit to suffer from a technical defect, the draftsman of the plaint had in the said prayer sought to protect the plaintiff by using the phraseology “that the defendant be ordered and decreed by a mandatory order or injunction ...”. Thus, really what was prayed for was a decree for possession. “It is now well settled that when we have to determine the nature of the suit what we are to look at is the real substance of the suit and not legal ingenuity in drafting the plaint. The plaint 11 read as a whole and the real substance of the suit leave no doubt that this is a suit between persons who hold the character of a licensor and licensee, which relationship having come to an end according to the plaintiff, the plaintiff has become entitled both in law and under the agreement of license to recover possession of the property from the defendant, his licensee. 20. As already seen, the decree holders by virtue of prayer (b) sought for removal of the defendant from the said property along with his friends, agents, family members, servants, etc. and in terms of prayer (a) sought for mandatory injunction of directing the defendants to demolish the shed/rooms constructed by him and to restore the land to its original state. If any construction to the said prayers in the manner sought to be put on behalf of the judgment debtor is allowed to be put, then it would only mean that the shed/rooms would be demolished, the defendant evicted and the property would remain in limbo without the same being handed over in possession of the decree holders. Once the shed is demolished, the judgment debtor evicted therefrom, by necessary implication, the property has to be restored to the decree holders. As rightly observed in Ramkrishna Bajirao Gotmare v. Kanhaiyalal Tribhuwanlal Shah(supra) in case of any doubt the benefit of it must go to the decree holder for whom obtaining a decree is generally a difficult task and realizing the fruits of the decree a distant dream. Therefore, it must be held that the decree passed contemplated not only the eviction of the 12 defendant but by implication, decree holders being put in possession of the property. 21. In the light of the above discussion, this Writ Petition is bound to succeed. The impugned Order is hereby set aside. Both the parties are hereby directed to remain present before the executing Court on 16-8-2010 at 10.00 a.m. Rule made absolute in terms of prayer clause (a) with no order as to costs. N. A. BRITTO, J. RD