1 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.129 OF 2011 Subhash s/o Shriramlal Jaiswal, Age 58 years, Occupation Business, R/o Juna Bazar, Aurangabad. ... APPLICANT VERSUS 1. Syed Shah Hussain Nehri s/o Syed Ahmed Nehri, Age 67 years, Occ. Pensioner, R/o Roshan Gate, Aurangabad, through G.P.A. Shaikh Rasool s/o Shaikh Vazir, Age 32 years, Occ. Business, R/o Bhadkal Gate, Aurangabad. 2. Syed Shah Mohammad Durwesh Nehri s/o Ahmed Nehri, Age 43 years, Occupation Military Service, R/o Aurangabad. ... RESPONDENTS ..... Shri P.N. Sonpethkar, Advocate for applicant Shri A.D. Kasliwal, Advocate for respondents ..... W I T H CIVIL REVISION APPLICATION NO.130 OF 2011 Subhash s/o Shriramlal Jaiswal, Age 58 years, Occupation Business, R/o Juna Bazar, Aurangabad. ... APPLICANT 2 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 VERSUS 1. Syed Shah Hussain Nehri s/o Syed Ahmed Nehri, Age 67 years, Occ. Pensioner, R/o Roshan Gate, Aurangabad, through G.P.A. Shaikh Rasool s/o Shaikh Vazir, Age 32 years, Occ. Business, R/o Bhadkal Gate, Aurangabad. 2. Syed Shah Mohammad Durwesh Nehri s/o Ahmed Nehri, Age 43 years, Occupation Military Service, R/o Aurangabad. ... RESPONDENTS ..... Shri P.N. Sonpethkar, Advocate for applicant Shri A.D. Kasliwal, Advocate for respondents ..... CORAM : S.S. SHINDE, J. DATED : 22nd July, 2011. Date of reserving judgment : 15th July 2011 Date of reserving judgment : 22nd July 2011 J U D G M E N T : 1. Rule. Rule made returnable forthwith and heard finally by consent of learned counsel for the parties. 3 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 2. These civil revision applications are filed challenging the order dated 5.2.2011, passed by the 13th Civil Judge, Junior Division, Aurangabad below Exh. 13 and 14 in M.A.R.J.I. No.601/2009 and the order passed below Exh. 14 in Regular Darkhast No.177/2009. 3. The revision applicant herein is Judgment Debtor and respondents are original decree holders. The respondents herein i.e. decree holders filed Regular Civil Suit No.262/1982 against the revision applicant for mandatory injunction and also for perpetual injunction in respect of suit property No.3115, situated at Juna Bazar, Aurangabad. The said suit came to be decreed on 29.4.1995. Thereafter, an appeal bearing Regular Civil Appeal No.177/1995 was filed before the District Court. The said appeal came to be dismissed on 19.6.2001. Against the said judgment in appeal, the applicant herein filed Second Appeal No.339/2001 before this Court and same also came to be dismissed at admission stage on 19.8.2004. The applicant herein filed 4 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 Special Leave Petition before the Hon’ble Supreme Court and same was also dismissed by order dated 14.7.2006. The respondents herein (original decree holders) filed execution petition bearing Regular Darkhast No.177/2009 for execution of decree and possession of property. In the said execution, the present applicant has raised objection that the execution is not filed within limitation as original decree is dated 29.4.1995. 4. By impugned judgment and order, the learned Judge negated the contention and objections raised by the applicant herein, and dismissed the application filed at Exhibit 14 in Regular Darkhast No.177/2009 and Exhibits 13 and 14 in M.A.R.J.I. No.601/2009 with costs of Rs. 1500/- to be deposited in the same Court till next date. These orders are under challenge in these Civil Revision Applications. 5. The learned counsel appearing for the applicant submits that, the date of decree is 19.4.1995, the execution petition was filed on 3.8.2009. It is further 5 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 argued that, it is a matter of record that there was no stay during the period of any appeal or Special Leave Petition which was filed before the Supreme Court. It is further submitted that, as per the old Act, the execution can be filed from the decision of the appeal or review. However, as per Article 136 of the Limitation Act, 1963, the execution petitions are required to be filed within 12 years from the date of decree or order becomes enforceable. The learned counsel further submitted that, there is no any scope for other interpretation, and mandate of Article 136 of the Limitation Act, should have been followed. It is further submitted that the doctrine of merger is wrongly applied by the decree holder and wrongly interpreted by the trial Court. Mere filing appeal would not amount stay to any proceedings. The learned counsel submitted that, the main question before the Supreme Court in case of Chandi Prasad Vs. Jagdish Prasad reported in 2004 DGLS (Soft.) 683 : 2004 (7) Supreme 121 : 2004 (8) JT 255 : 2004 (8) Scale 446 was to test the legality of decision in Ratan Singh Vs. Vijay Singh’s case. It is further submitted that, considering the scope of old Article 182, the Parliament has deliberately and wisely made drastic 6 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 changes in the Limitation Act and new Article 136 is substituted in place of old Article 182. The learned counsel invited my attention to the fact that, the limitation for execution of decree starts from the date of the judgment and decree passed by the trial Court. It is not suspended by any Act of filing of appeal unless it is stayed by any appellate Court. The decision in first appeal, Second Appeal or Special Leave Petition would not give fresh cause of action or limitation to the decree holder to extend the period of limitation unless the decree of trial Court is suspended by decree of appellate Court. After passing the judgment, the decree holder is free to execute decree unless and otherwise prevented by any terms of decree or stay by the trial Court. The doctrine of merger will not apply if the decree of trial Court is not superseded by decree of appellate Court. If there is no stay during the period of appeal and appeal is dismissed, and further if the Second Appeal is dismissed and lastly in the present case, Special Leave Petition also came to be dismissed summarily, therefore, the limitation for execution of decree will be from the date of decree of trial Court and not from the date of judgment of the appellate 7 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 Court. In support of his contention, the learned counsel placed reliance on following judgments : 1) Civil Appeal No.7194/2000 Ratan Singh Vs. Vijay Singh, (dated 11.12.2001 S.C.I. 1) 2) 2007 AIR SCW 7186 (Manohar Shankar Nahale Vs. Jaypal Singh Rajput) 3) AIR 2007 NOC P. 172 Bombay (Sopan Rambhau Musale Vs. Baban Bhagwanta Khade) 4) AIR 1951 SC 16 (Yeshwant Deorao Deshmukh Vs. Ramchandra Walchand Kothari) 5) 2001 RD/SC 386 A.C. Arullapan Vs. Ahalya Naik. Therefore, the learned counsel submits that the revision applications may be allowed. 6. On the other hand, learned counsel appearing for the respondents submitted that, the respondents filed Regular Civil Suit No.252/1982 before the Civil Judge, Junior Division, Aurangabad for possession, which was decreed on 29.4.1995. The petitioner preferred Regular Civil Appeal No.177/1995 before the District Court at Aurangabad which was dismissed by judgment and decree dated 19.6.2001. The petitioner filed Second Appeal No. 8 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 339/2001 before this Court which also came to be dismissed vide judgment and order dated 19.8.2004. The learned counsel for respondents further submitted that the respondents have filed execution petition bearing Regular Darkhast No.177/2008 on 3.8.2009 for enforcement of the decree and also filed M.A.R.J.I. No. 601/2009 for mesne profits. The applicant herein moved application Exh. 14 in Regular Darkhast No.177/2009 for dismissal of the execution petition on the ground that the same is not filed within a period of 12 years from the date of decree i.e. 19.4.1995. The applicant also moved application Exh. 13 for framing preliminary issue in M.A.R.J.I. No.601/2009. Both these applications came to be rejected by the executing Court by common order dated 5.2.2011. Learned counsel for the respondents further submitted that the decree passed by the trial Court on 29.4.1995 was confirmed by the lower appellate Court on 19.6.2001 and the Second Appeal filed by the applicant was dismissed by this Court on 19.8.2004. Therefore, according to the learned counsel for the respondents, the contention of the applicant that the execution petition is barred by limitation as per Article 9 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 136 of the Limitation Act is not acceptable. According to the learned counsel for the respondents, the decree passed by the trial Court on 29.4.1995 was merged in the decree passed by this Court in Second Appeal, on 19.8.2004 and, therefore, the execution petition filed by the respondents is within the period of limitation. Learned counsel for the respondents placed reliance on the judgment of the Supreme Court in case of Chandi Prasad Vs. Jagdish Prasad reported in 2004 DGLS (Soft.) 683 : 2004 (7) Supreme 121 : 2004 (8) JT 255 : 2004 (8) Scale 446 and also on the judgment of this Court in the case of Sadashiv Gnyanba Chaugule Vs. Babu Tukaram Chaugule reported in 2010 (3) Mh.L.J. 978, wherein the judgment relied upon by the present applicant in the case of Manohar Shankar Nale Vs. Jaypalsing reported in 2008(1) SCC 520 was considered and this Court held that in the same matter the Hon’ble Supreme Court was not called upon to consider the effect of merger of the decree of the trial Court with the decree of appellate Court. Learned counsel for the respondents therefore, submitted that the executing Court has rightly rejected the applications filed by the applicant by holding that the execution petition 10 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 and the proceedings for mesne profit are within limitation and hence prayed that the Civil Revision Applications be dismissed. 7. I have given due consideration to the submissions advanced by the learned counsel appearing for the respective parties. In the present case, it is not in dispute that the decree is passed on 19.4.1995 in Regular Civil Suit No.252/1982 and execution petition is filed on 3.8.2009. As per Article 136 of the Limitation Act, the time for filing the execution petition for enforcement of decree is 12 years from the date of decree. It is true that, in the second appeal which was filed by the applicant herein there was no stay granted by this Court, but the decree of the Civil Judge, Junior Division was merged in the order passed by the appellate Court when the appeal filed by the applicant was dismissed on 19.6.2001 by the District Court. Thereafter, even in Second Appeal, both the sides were heard and after effective hearing, the Second Appeal came to be dismissed on 19.8.2004 and thereafter, Special Leave Petition was dismissed summarily by the Supreme Court on 14.5.2006. The 11 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 decree of trial Court was confirmed by this Court while dismissing the Second Appeal of judgment debtor. While dismissing the Second Appeal this Court has granted three months’ time to the present applicant i.e. judgment debtor to vacate the premises after filing the undertaking in accordance with decree passed by the trial Court and further the applicant herein was restrained from creating any third party interest in the suit property during the protection period of three months. Therefore, the decree of the trial Court has merged in the order passed by this Court in Second Appeal. 8. The trial Court, in para 11 of the impugned judgment, has observed that, the appeal filed by the appellant before the lower appellate Court was dismissed on 19.6.2001. Even if that date is considered, the execution proceedings are filed within limitation. 9. In my opinion, the point raised in the Civil Revision Applications is squarely covered by the judgment of the Hon’ble Supreme Court in case of Chandi Prasad Vs. Jagdish Prasad reported in 2004 DGLS (Soft.) 683 :2004 12 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 (7) Supreme 121 : 2004 (8) JT 255 : 2004 (8) Scale 446. The question which was referred to the Bench consisting of three Hon’ble Judges for consideration was, what would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963 ? While answering this question, the Hon’ble Supreme Court held that, when a judgment is pronounced by High Court in exercise of its appellate power upon entertaining the appeal and full hearing in presence of both the parties, the same would replace the judgment of the trial Court and only the judgment of the High Court would be treated as final. When a Special Leave Petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. (Emphasis supplied) Therefore, it follows from the authoritative pronouncement of the Hon’ble Supreme Court in the case of Chandi Prasad (cited supra) that when the appeal is heard and decided by the High Court after full hearing in 13 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 presence of both the parties, the said judgment / order would replace the judgment of the lower Court and only the judgment of the High Court would be treated as final. Therefore, the limitation to file decree for execution will start from the date of judgment/ order in appeal. In the present case, it is not in dispute that Second Appeal filed by the applicant herein came to be dismissed on 19.8.2004 after hearing the parties in the Second Appeal. Not only that, but even the judgment debtor was given three months’ time to vacate the premises on giving usual undertaking and he was further directed not to create third party interest during that three months’ period. Therefore, in the present case, the principle of merger would apply and the limitation would start from 19.8.2004 i.e. from the date of dismissal of Second appeal filed by the applicant herein. As stated earlier, even if the date 19.6.2001 is taken into consideration when appeal filed by the applicant was dismissed by the lower appellate Court, even in that case the execution proceedings filed by the respondents will be 14 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 within time as per mandate of Article 136 of the Limitation Act. 10. The learned counsel appearing for the applicant has placed heavy reliance on the judgment of the Hon’ble Supreme Court in case of Manohar Shankar Nale & ors. Vs. Jaipalsing Shivlalsing Rajput & ors., reported in 2007 AIR SCW 7186. (cited supra). However, this Court had occasion to consider the said judgment in somewhat similar controversy like case in hand, in case of Sadashiv Gyanba Chaugule (since deceased) by his L.Rs. Ramchandra Sadashiv Chaugule & anr. Vs. Babu Tukaram Chaugule (since deceased) by his L.Rs. & ors., reported in 2010 (3) Mh.L.J. 978, and in para 7 of said judgment, this Court has taken a view that in case of Manohar (cited supra), the Hon’ble Apex Court has not considered the effect of merger of the decree of the trial Court with the decree of the appellate Court as the Apex Court was not called upon to consider the said aspect. This Court has further considered para 18 of the judgment in Manohar’s case (cited supra) and ultimately held that, the Supreme 15 Civil Revision Application No.129/2011 with Civil Revision Application No.130/2011 Court was not considering in the said decision, the effect of merger of the decree. 11. Therefore, taking overall view of the matter, in my opinion, the judgment and orders passed by 13th Jt. Civil Judge, Junior Division, Aurangabad below Exh. 13 and 14 in M.A.R.J.I. No.601/2009 and the order passed below Exh. 14 in Regular Darkhast No.177/2009 call for no interference. Hence, the Civil Revision Applications are devoid of any merits, same stand dismissed. Rule discharged. ( S.S. SHINDE, J. ) At this stage, the learned counsel for the applicant prays for continuation of interim relief for further eight weeks. The learned counsel for respondents opposes the prayer and submits that the applicant had given undertaking at the time of dismissal of his Second Appeal on 14.8.2004 that he will vacate the premises within a period of three months. In view of this, the prayer for continuation of interim relief is rejected. ( S.S. SHINDE, J. )