1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR L.P.A. NO.490 OF 2009. IN WRIT PETITION NO.3595 OF 2009 (D). KESHAVRAO S/O RAMAJI HINGE VS SUMITRA W/O SANTOSHRAO DEOTALE AND OTHERS. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri V.M. Deshpande, Advocate for the appellant. CORAM : A.H. JOSHI AND A.R. JOSHI, JJ. DATE : 30th November, 2009. 1. The Judgment of learned Single Judge declining to interfere in the order pass below Exh.13 in final decree proceeding No.3 of 2008 is under challenge in this petition. 2. By Exh.13, the appellant herein had objected to the final decree proceedings on the ground that the application for making the preliminary decree for partition, a final decree was barred by limitation on the ground that it was filed beyond 12 years from the date of preliminary decree. 3. The Executing Court as well as Single Judge of this Court found the application within limitation by 2 overruling the objection as to limitation where the period during pendency of appeal was over. 4. The appellant heavily relied, before this Court, on the judgment of Hon’ble Supreme Court reported in 2005(2) Civil LJ 97, Supreme Court, as he has done before the learned Single Judge. 5. We are not pursuaded as to how the point of doctrine of merger is involved in the case. 6. All that the appellant wants to urge is that the decree sought to be finalised does not merge into the order of dismissal of appeal, and therfore, the appeal was barred by limitation. 7. We hold that since the appellant had challenged the decree under appeal, it was obvious that he was not entitled or able to execute the decree, and hence, the decree had not attained the finality. The application for finalization of decree was, therefore, competent only after dismissal of appeal - whether on merits or otherwsie. 8. The appeal has no merit and is dismissed. JUDGE JUDGE |Muley| 3