1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5522 OF 1997 Mr.Sadashiv Gyanba Chaugule (since deceased) by his heirs and legal representatives: Ramchandra Sadashiv Chaugule & Anr. .. Petitioners versus Babu Tukaram Chaugule (since deceased) by his heirs and legal representatives & Ors. .. Respondents Mr.S.S.Patwardhan for the petitioners. Mr.Sandeep Phatak i/by Mr.A.V.Anturkar for respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE : 9th March 2010. JUDGMENT: . I have heard the learned counsel appearing for the parties. The issue involved in this writ petition under Article 227 of the Constitution of India is as regards the starting point of limitation provided under Article 136 of the Limitation Act, 1963. The original petitioner is the original plaintiff. The suit filed by the petitioner-plaintiff was decreed on 27th December 1976. An appeal was preferred by the defendant (respondent herein) before the District Court. The said appeal was dismissed by judgment and decree dated 31st October 1977. On 27th February 1989, an application for execution of the decree was filed by the original petitioner. By the impugned order the said 2 application has been dismissed. The learned executing Court held that in view of Article 136 of the said Act the application for execution ought to have been filed within a period of 12 years from 27th February 1976 as the decree passed by the trial Court was not stayed during the pendency of the appeal preferred by the respondent. 2. The learned counsel appearing for the petitioners placed reliance on a decision of the Apex Court in the case of Chandi Prasad and Others Vs. Jagdish Prasad and Others [(2004) 8 Supreme Court Cases 724]. He submitted that the decree of the Trial Court merged with the decree of the Appellate Court and therefore the period of limitation will start running from the date on which the Appellate Court passed a decree. He also placed reliance on a decision of the learned single Judge of this Court in the case of Ramkrishna Bajirao Gotmare Vs. Kanhaiyalal Tribhuwanlal Shah [1990 Maharashtra Law Journal 897]. He submitted that looking to the phraseology used by the Article 136 , even decree passed by the Appellate Court can be executed as the decree passed by the trial Court merges with the decree of the Appellate Court. He, therefore, submitted that from the date of the decree of the Appellate Court, the execution application was filed within limitation. 3. The learned counsel appearing for the respondents placed reliance of decision of the Apex Court in the case of Manohar Shankar Nale and Others Vs. Jaipalsing Shivlalsingh Rajput and Others [(2008) 1 Supreme Court 3 Cases 520]. He submitted that the decree became enforceable on 27th February 1976 and admittedly the execution of the said decree was not stayed during the pendency of the appeal. He submitted that period of limitation will start from the date on which executable decree is passed which in the present case will be 27th February 1976. Relying upon certain observations in the said decision, he submitted that period of limitation will have to be computed from 27th February 1976. He, therefore, submitted that there is no scope to interfere with the order of the executing Court. 4. I have considered the submissions. It is not in dispute that the execution application filed by the petitioner will be governed by Article 136 of the said Act which reads thus: Description of suit Period of limitation Time from which period begins to run 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years When] the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Reliance has been placed on the decision of the Apex Court in the case of Chandi Prasad (supra). The question which arose for consideration of the 4 Apex Court has been noted in paragraph 1 thereof which reads thus: “What would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of the Limita- tion Act, 1963 (the Act) is the question involved in this appeal which arises out of a judgment and decree dated 30-3-2001 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 8954 of 2001.” This was a case where a preliminary decree of partition was passed on 25th April 1962 and final decree was passed on 7th May 1968. An execution application was filed on 6th August 1968. Against the final decree, an appeal was preferred which was dismissed on 21st March 1969. In the Second Appeal there was an order of remand to the first Appellate Court. In the meanwhile, the execution application was dismissed presumably because the Second Appeal against the decree was allowed and the first appeal was directed to be re-heard. The first appeal was dismissed on 4th January 1974. There was a Second Appeal preferred which was dismissed on 18th April 1985. A formal decree was drawn on 30th October 1986 and an application for execution was filed on 26th March 1997. The execution application was dismissed as barred by limitation. The District Court reversed the said order and restored the execution application. Writ petition against the said order was dismissed and a special leave petition was filed before the Apex Court. The Apex Court considered the definition of decree under section 2(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The Apex Court also considered Article 182 of the old Limitation Act as well as section 48 of the said Code which was 5 subsequently repealed. The Apex Court discussed the definition of decree under the said Code and in paragraph 20 the Apex Court held thus: “20. It is not disputed that all decrees, be they original or appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appel- late, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation.” While dealing with doctrine of merger, in paragraph 24 the Apex Court held thus: “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 summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. [See V.M. Salgaocar and Bros. (P) Ltd. v. CIT.]” The Apex Court proceeded to dismiss the appeal and held that execution was within limitation. 5. In the case of Ramkrishna (supra), a similar controversy arose before this Court. In paragraph 6 of the decision this Court noted the consistent legal position: “6. Thus the conclusion is inevitable that consistent legal position has been that an appellate decree supersedes the original decree on the basis of doctrine of merger, only that superseded decree is enforceable; and the new Act has not brought about any change in the above crystallized legal position. Such result would ensue even 6 on the effect of Order 41, Rule 35 of the Code which deals with the decree in appeal. Even if there is any doubt on the question its 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. ......” This Court further observed thus: “.... True that the original decree is enforceable despite pendency of appeal if there is no stay, but that is besides the point. Crux of the matter is, once it merges into the appellate decree, it ceases to rule. It is also contended that in that view of the matter, section 15 of the new Act would be rendered otiose. Those provisions provide for exclusion of time during which order of stay operates. I do not see how the said section is rendered otiose. Stay referred therein is not confined to the stay granted by the appellate Court. Moreover, such provision existed even in the old Act. Section 15 operates upon altogether different field and circumstances.” 6. The Article 136 of the said Act applies to execution of any decree or order of any Civil Court. It includes the decree of Appellate Court. The Apex Court in the aforesaid decision held that the decree of the trial Court mergers with the decree of Appellate Court irrespective of the fact whether decree of the trial Court is confirmed in appeal or is upset in appeal. That is why the learned single Judge in the case of Ramkrishna (supra) came to the conclusion that under Article 136 , the starting point of limitation is the date of the decree of the Appellate Court with which the decree of the trial Court is merged. 7. The learned counsel appearing for the respondents relied upon the decision of the Apex Court in the case of Manohar (supra). It must be noted here that the Apex Court in the said decision was not dealing with the issue 7 arising in this petition or the issue which arose in the case of Chandi Prasad (supra). The Apex Court has not considered the effect of merger of the decree of the trial Court with the decree of Appellate Court as the Apex Court was not called upon to consider the said aspect. Reliance was placed on paragraph 18 of the decision of the Apex Court which reads thus: “18. The decree of possession passed in favour of the respondent became enforceable immediately on its passing. An execution peti- tion therefor was required to be filed within a period of 12 years.” This was a case where a decree for possession was passed for the first time by the High Court in Second Appeal. A review petition was filed before the High Court which was dismissed on 12th August 1985. The Apex Court granted stay on 21st March 1988 and the appeal before the Apex Court was ultimately dismissed. In this context, in paragraph 15 of the decision , the Apex Court noted that it is not the case that any order of stay was passed in the review application. The Apex Court noted that what was stayed by the Apex Court was the operation of the order passed in the review petition and not the original decree. Considering the scope of review application, it is obvious that the decree sought to be reviewed does not merge with the order passed on the review application. Therefore, the said decision will not help the respondents. 8. Thus, what was sought to be executed by the petitioners was a decree of the Appellate Court with which decree of the trial Court had merged. The execution application was filed within period of twelve years from the date of 8 decree of the Appellate Court. In the circumstances, the trial Court committed an error by holding that the execution was barred by limitation. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned order dated 27th September 1995 is quashed and set aside and it is held that Regular Darkhast No.72 of 1989 is filed within limitation. (b) The executing Court will proceed with the execution application in accordance with law and shall dispose of same as expeditiously as possible. (c) Rule is made absolute in above terms. (A.S.OKA,J)