1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.3595 OF 2009 1. KESHAVRAO S/O RAMAJI HINGE R/O WAIGAON, NIPANI, WARDHA .. PETITIONER/S. VERSUS 1. SMT. SUMITRA W/O SANTOSHRAO DEOTALE R/O HINGANGHAT, WARDHA 2. SUMAN W/OSAMBHAJI AWACHAT R/O WARDHA 3. MADHAVRAO S/O RAMAJI HINGE R/O WAIGAON, NIPANI, WARDHA 4. VITHABAI W/O PUNDLIKRAO SHINDE R/O REHAKI, SURGAON, WARDHA 5. MUKTABAI W/O VYANKATRAO HINGE R/O WAIGAON, NIPANI, WARDHA 6. SUNILKUMAR S/O VYANKATRAO HINGE R/O WAIGAON, NIPANI, WARDHA .... RESPONDENTS. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri U.M.Aurangabadkar, Advocate for Petitioner. CORAM : R.C.CHAVAN, J. DATED : AUGUST 26, 2009. 1. Heard. 2 2. This petition is directed against an order passed by Civil Judge Senior Division, Wardha below Exh.13 rejecting petitioners’ objection to the tenability of the final decree proceedings on the ground that they were barred by limitation. Decree which was sought to be executed was passed on 09.07.1991. An appeal was preferred which was dismissed for want of prosecution on 31.03.2004. It is the contention of the learned counsel for the petitioner that since this appeal was dismissed in default doctrine of merger will not apply and limitation will have to be counted from 09.07.1991 i.e. from the date of decree. For this purpose he relied on judgment of the Supreme Court in Chandi Prasad Vs. Jagdish Prasad, reported at 2005(2) Civil LJ 97. Observations in paragraphs 23 and 24 of the judgment may be usefully reproduced as under : “23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 3 24. 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 & Brothers Pvt.Ltd. V. Commissioner of Income- tax, AIR 2000 SC 1623].” 3. It may be seen that summary dismissal of the Special Leave Petition cannot be equated to dismissal of appeal in default, because appeal is a matter of right, whereas the Special Leave Petition is matter resting in the discretion of the Court. Unless the Supreme Court grants leave there is no question of entertaining an appeal. It cannot, therefore, be said that the Supreme Court in the aforementioned case held that when appeal is dismissed in default, limitation would start from the date of decree passed by the original Court. If such a contention is allowed to be canvassed result would be disastrous and unscrupulous defendant, against whom decree is passed, would file appeal 4 before the Court, drag it for a substantial period, allow it to be dismissed in default and then say that the original decree cannot be executed, since it is time barred. 4. In view of this, it cannot be said that the learned Judge erred in rejecting the petitioner’s application. The petition is, therefore, dismissed. JUDGE RR.