spb/- 1 cra1065-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO. 1065 OF 2010 Revansidhyya Gurulingyya Hiremath, deceased through legal heirs : 1 Gurushankar Revansidhyya Hiremath & Ors. ... Revision Petitioners. V/s. Dinkar Manikrao Ballal, deceased through legal heir : Manohar Manik Ballal ... Respondent. --- Mr. Nitin Mulye i/by Ashok B. Tajane for the Applicants. Mr. Suhas S. Inamdar for the Respondent. ----- CORAM : D. G. KARNIK, J. DATE : 07th FEBRUARY, 2011. P.C. 1 Heard learned counsel for the parties. 2 This civil revision application is directed against an order dated 10th November, 2010 passed by the Civil Judge, Junior Division, Akkalkot, overruling the objections raised by the revision applicants to the maintainability of the execution proceedings (Darkhast No. 04/2006) on the ground that it was barred by limitation. 3 The respondent is a heir of the original owner and landlord of the suit premises. Applicants are the heirs of the original tenant. A suit spb/- 2 cra1065-10.sxw bearing civil suit no. 198/1982 was filed by the plaintiff under whom the respondent claims for eviction against Revansidhyya, whose heirs are the present applicants. For the sake of convenience, the parties are hereinafter referred as per their original status in the suit. 4 It was the case of the plaintiff that he was a tenant and residing in some other premises and that he was under a threat of eviction from his rented premises because his landlord had filed a suit (RCS No.92/1982) for eviction against him and although that suit was dismissed, his landlord had filed an appeal (appeal No. 5/1989) and the plaintiff was likely to be evicted if the appellate court passed a decree against him. The plaintiffs’ suit was decreed and the appeal (361 of 1986) filed by the defendant was also dismissed. Aggrieved defendant filed a writ petition (W.P.No. 5136 of 1989) in this Court. At the hearing of the writ petition, the defendant gave an undertaking to this court that in the event the appeal (5 of 1989) filed against the plaintiff by his landlord was allowed, the defendant would vacate the suit premises within three months. On such undertaking, this court by its order dated 9 March, 1990 disposed of the writ petition (W.P.No.5136 of 1989) by the following order : “IT IS ACCORDINGLY ordered that this Writ Petition is disposed of as above. The Petitioner having filed an undertaking as per the above Court’s order within stipulated time, the eviction decree against the Petitioner is stayed and the time is granted to the Petitioner to vacate the suit premises to the Respondent-Landlord on the condition that if the spb/- 3 cra1065-10.sxw decision of the Misc. Appeal No.5 of 1989 pending in the District Court, Solapur will be against the Petitioner he shall handover the quite, vacant and peaceful possession of the premises to the Respondent-Landlord within three months of the decree passed in the said Appeal.” 5 Thus a decree for eviction which was passed by the courts below against the defendant was slightly modified by this court. The decree was confirmed on condition that if a decree for eviction was passed against the plaintiff in the appeal filed by his landlord, the defendant would vacate the suit premises within three months. In other words, the execution of a decree passed in favour of the plaintiff was stayed and deferred for a period of three months until final disposal of the appeal no. 5/1989 filed against him by his landlord was decided against the plaintiff. 6 Learned counsel for the petitioners (heirs of original defendant) submitted that the appeal no. 5/1989 filed by the plaintiff’s landlord was allowed on 31.03.1992 and the decree for eviction was passed against him. On the appeal being allowed, the decree for possession passed in favour of the plaintiff became executable on 30.06.1992 i.e. on the expiry of a period of three months from the date of the decision of the appeal. He submitted that the execution petition (from which the present writ petition arises) was filed on 14.02.2006 i.e. after expiry of a period of 12 years from the date on which the decree became executable and therefore it was barred by limitation. He submitted that the trial court spb/- 4 cra1065-10.sxw ought to have dismissed the execution petition (Darkhast No.04/2006) as barred by limitation and not maintainable. 7 Per contra, learned counsel for the respondent (original plaintiff) submitted that though an appeal no. 5/1989 filed by the plaintiff’s landlord was allowed and a decree for eviction was passed against him, the plaintiff had challenged the said decree by filing a writ petition (W.P.No.516 of 1994) in this court. During the pendency of the writ petition, a stay to execution of a decree was granted and it was vacated only on 6th April, 1994 when the writ petition was dismissed. He therefore, submitted that till 6th April, 1994 the decree for eviction passed in his favour and against the defendant was not executable. It became executable only on 6th April, 1994 and the execution petition which was filed on 14th February, 2006 was thus filed within 12 years of the decree becoming executable and was within limitation. 8 When the judgment and order passed by a court is appealed against and the appellate court decides the appeal, the judgment and order of the trial court merges into the judgment and order passed by the appellate court. This principle which was initially applied in respect of the appellate court’s orders has gradually been extended to the other proceedings like Revisions and even Quasi Judicial proceedings (see M/s. Gojer Brothers Pvt. Ltd., vs. Shri Ratan Lal Singh, AIR 1974 S.C.1380) where a decree of a court (trial court or appellate court) is subjected to a challenge in a writ petition under Article 227 of the Constitution of India and the writ petition is dismissed by an order passed after hearing the parties, the judgment and order of the courts below merges into the spb/- 5 cra1065-10.sxw orders passed in the writ petition. 9 It is, therefore, clear that the judgment and order passed in Appeal No. 5/1989 is merged into a decision of the writ petition (w.p.516 of 1994) which was dismissed on 6th April, 1994. If so, the plaintiff could not have filed execution proceedings until expiry of a period of three months from the dismissal of his writ petition i.e. until 6th July, 1994. The decree passed in favour of the plaintiff in the suit became executable only on 6th July, 1994. The execution proceeding which has been filed by the heirs of the original plaintiff on 14th August, 2006 is filed within 12 years of the decree becoming executable. Consequently, it is filed within the period of limitation. 10 Article 136 of the Limitation Act prescribes the period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) to be 12 years. Column 3 of Article 136 provides that a period of 12 years is to be reckoned when the decree or orders becomes enforceable. As stated earlier the decree for eviction passed in favour of the plaintiff became enforceable only on 6th July, 1994 i.e. after expiry of three months of the decision of the writ petition no. 516/1994. Till that time the decree could not have been executed in view of the orders passed by this court on 9th March, 1990 in writ petition no. 5136/1989, which is quoted above. The execution petition filed on 14 February, 2006 is thus filed within 12 years and is within limitation. The executing court has rightly held that the execution petition is maintainable. spb/- 6 cra1065-10.sxw 11 For these reasons, there is no merit in the revision application and which is hereby rejected. 12 After this order was pronounced in the open court, the learned counsel for the revision applicants prays for continuation of interim relief for some time to enable the applicants to take further steps in the matter. It is accordingly, directed that the possession warrant shall not be issued for a period of eight weeks from today. [D.G. KARNIK, J.]