CR No.4184 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4184 of 2008 Date of decision : 05-07-2010 Pritam Kaur .... Petitioner VERSUS Smt. Sudarshan Kaur and others ....Respondents CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Malkeet Singh, Advocate, for the petitioner. Mr. A.K. Chopra, Senior Advocate, assisted by Sh. Harminder Singh, Advocate, for the respondents. KANWALJIT SINGH AHLUWALIA, J. (Oral) Sudarshan Kaur mother and natural guardian of Raminderjit Singh sold the land of Raminderjit Singh in favour of Kundan Singh and others on 29.12.1960. Raminderjit Singh on attaining majority challenged the validity of sale deed dated 29.12.1960 by filing a suit in the Court of Sub Judge 2nd Class, Batala. The suit was decreed in favour of the plaintiff vide judgment and decree dated 12.06.1972 by holding that the sale was not valid and binding on the plaintiff. Kundan Singh and Ghogi alias Gog Singh aggrieved against the decision of Sub Judge 2nd Class, Batala filed an appeal. The appeal was decided on 3.12.1973. The Appellate Court upheld the finding that the sale was not binding on the plaintiff who was minor CR No.4184 of 2008 -2- when the same was executed, however, modified the decree and held appellants entitled to Rs.8227/- against the sum of Rs.7300/- as ordered by the trial Court. The purchaser of the land Kundan Singh and others accepted the decision of the Appellate Court. However, Raminderjit Singh filed Regular Second Appeal No.447 of 1974 in this Court. The appeal was entertained. It will be pertinent to mention here that Raminderjit Singh deposited the amount in the trial Court to satisfy the decree on 3.4.1974 under the orders passed by this Court on 7.03.1974. During the pendency of the appeal, Raminderjit Singh died on 4.01.1978. His legal representatives were brought on record. Sh. A.K. Chopra, Advocate states that an application was filed in this Court by Kundan Singh and others for dismissing the appeal on the plea of having abated. It is stated that the application was rejected and the appeal was later dismissed as not pressed. On 4.1.1995 Sudarshan Kaur mother of Raminderjit Singh as a legal representative filed an execution application and prayed that warrant of possession be issued in her favour. Objections were filed to the execution application stating that the decree-holder has approached the Executing Court after the period of limitation was over. Additional Civil Judge (Senior Division), Batala vide impugned order dated 19.07.2008 had dismissed the objections holding that doctrine of merger is to be invoked and the period of limitation is to commence from the date when Regular Second Appeal was dismissed as not pressed. Thus Execution Application was held within a period of limitation. CR No.4184 of 2008 -3- Aggrieved against the order dated 19.07.2008 passed by the Executing Court, the present revision petition has been filed. Sh. Malkeet Singh, Advocate appearing for the petitioner – judgment debtor has made following submissions:- a) That after dismissal of the Regular Second Appeal, decree modified by the District Judge on 3.12.1973 became operative and the period of limitation is to commence from that date, i.e. 6.1.1983, for the following reasons:- i) In Regular Second Appeal, lis was not determined as the appellants did not want to challange the modified decree of Distt. Judge. Neither decree was modified nor affirmed nor was set aside. Therefore, withdrawal of the appeal is to be construed to the peril of the decree holder. ii) This Court, though entertained the Regular Second Appeal, yet had not altered decree as it was not pressed by the appellants and the decree enforceable is that of District Judge, Gurdaspur. iii) In the Execution Application, respondent sought enforcement of the order of this Court, dated 6.01.1983. A perusal of CR No.4184 of 2008 -4- this order reveals that the appeal was dismissed. b) Lastly, Sh. Malkeet Singh, Advocate has urged that Sudharshan Kaur had effected the sale on behalf of Raminderjit Singh. Therefore, estoppel shall operate against her to enforce the decree whereby sale deed has been set aside. Sh. A.K. Chopra, Advocate assisted by Sh. Harminder Singh, Advocate has submitted that not only doctrine of merger shall apply but this Court cannot lose site of the fact that Regular Second Appeal is in continuation of the trial. I have given thoughtful consideration to the rival submissions advanced. Hon'ble Apex Court in Union of India and Others versus West Coast Paper Mills Ltd. and another, 2004(2) RCR (Civil) 148 held that the earlier view formulated by Hon'ble Apex Court in P.K. Kutty Anuja Raja v. State of Kerala, 1996(2) SCC 496 and Secretary, Ministry of Works & Housing Govt. of India v. Mohinder Singh Jagdev, 1996(6) SCC 229 has not considered the doctrine of merger. In West Coast Paper Mills Ltd. (Supra) in Para 21, it was observed as under:- "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order CR No.4184 of 2008 -5- under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." It was further observed in Para 41 as under:- "41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this CR No.4184 of 2008 -6- Court. 42."To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality.(See Corpus Juris Secundum, Vol. LVII, pp. 1067-68)" (See also Raja Mechanical Company Pvt. Ltd. Vs. Commissioner of Central Excise, 2002 (4) AD (Delhi) 621)" It will also be necessary to reproduce Para 36 of West Coast Paper Mills Ltd. (Supra):- "36. It has not been and could not be contended that even under the ordinary civil law the judgment of the appellate court alone can be put to execution. Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S.S. Rathore (supra) was to be followed in the instant case." Fact that the appeal against the judgment and decree of the District Judge, was entertained by this Court, is sufficient to infer that the same was under eclips. Once the appeal was dismissed, the doctrine of merger has to apply. The very fact that the appeal was pending in this Court is sufficient to hold that from 1973 to 1983 for a period of ten years, decree passed by District Judge, Gurdaspur remained under cloud. Counsel for the petitioner has relied upon Ratan Singh versus Vijay Singh and others, 2001(1) SCC 469 to contend that the period of limitation for execution of decree has to commence CR No.4184 of 2008 -7- from the day when it became enforceable. It is urged that the appellate order amounts to decree and the same continued to remain enforceable. The ratio of law laid down in Rattan Singh's case (Supra) in view of later judgment of Hon'ble Apex Court in West Coast Paper Mills Ltd. (Supra) where it has been specifically stated that where the decree or order of appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, which becomes enforceable. Furthermore, in West Coast Paper Mills Ltd. (Supra) in Para 36, it has been held that the appeal is continuation of the trial. Argument regarding conduct of Sudarshan Kaur, and that is estopped from executing the decree was neither under challange before Court below nor has been pressed in right earnest. Therefore, no fault can be found with the well reasoned order passed by the Executing Court. Thus, no interference is warranted and the present revision petition is dismissed. (KANWALJIT SINGH AHLUWALIA) 05-7-2010 JUDGE manju