Case: SHANTHI Vs. T.D. VISHWANATHAN AND ORS

2. The suit was filed by the plantiffs/respondents for recovery of possession and arrears of rent against the defendant/appellant hereinThe appellant was a tenant of the respondents. The property in question is a residential house. The Trial Court, the first Appellate Court and the High Court have concurrently concluded that the plantiff is entitled to get possession of the suit property and arrears of rent. Thus, the suit was decreed against the tenant by such concurring judgments. Thereafter, an execution petition was filed in 2006 for executing the decree.

Reasoning: 4. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30.12.2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court5. The aforementioned question raised by the learned advocate for the appellant is no more res-integra, inasmuch as the very question is decided by a Three Judge Bench of this Court, in the case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724 , wherein it was observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of whether it is passed by the Trial Court, the First Appellate Court or the Second Appellate Court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the 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 time6. Since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger.