Narayan Bhau Salve v. Khandu Baburao Salve

14. Article 136 prescribes 12 years period of limitation for the execution of any decree other than a decree granting mandatory injunction. A decree for perpetual injunction, however, is not subject to any period of limitation. Under the third column of the Schedule, the time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or 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 places.

15. In the case at hand, it is the first part of the third column of Article 136, which would govern the commencement of the period of limitation for the execution of the decree i.e. when the decree become enforceable.

16. This leads me to the moot question: when did the decree in the instant case become enforceable ? To explore an answer, it is necessary to first extract the terms in which the decree was fashioned. The order passed by the trial Court reads as under: “(1) The suit is decreed with costs. (2) Defendant No.1 is hereby directed to execute registered sale deed of the suit land described in plaint para No.2 as per the agreement of sale deed dated 2-5-1968 and by confirming his possession as owner. Defendant No.2 also comply the transaction as a consenting party to the sale deed of the suit land. (3) The Plaintiff is entitled to get executed registered sale deed of the suit land in his favour through the Court, if the defendants failed to execute the same. (4) Decree be drawn accordingly.”

17. The aforesaid order would indicate that there was a clear and categorical direction to Defendant No.1 to execute a registered Sale Deed in favour of the Plaintiff, and the Defendant No.2 was also directed to join in the execution of the instrument as a consenting party thereto. The decree was plain and unqualified. It was not subject to any condition to be performed by the Plaintiff, like deposit of the balance consideration within the stipulated period of time. In the event of default, under clause (3) of the aforesaid order, liberty was given to the Plaintiff to get the instrument executed and registered through the Court. An inference, thus, becomes inescapable that the decree passed by the trial Court on 9 March 2001 became executable eo-instanti.

18. Before adverting to appreciate the contrarian submissions assiduously canvassed by Mr. Anturkar, it is imperative to note that though Defendant Nos.[1] and 2 had preferred separate appeals against the aforesaid judgment and decree passed by the trial Court, yet there was no stay to the execution and operation of the said decree. In the absence of stay to the execution and operation of the decree, either by the trial Court (for a limited period) or by the Appeallate Court during the pendency of the appeal, there was, prima facie, no impediment in the execution of the decree, though the appeals were pending before the Appellate Court.

19. At this stage, the provisions contained in Order XLI Rule 5(1) of the Code, deserve to be noted. Rule 5(1) makes it explicitly clear that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

20. The aforesaid provision emphasises, rather by way of ex abundanti cautela that mere filing of an appeal against the decree does not, by itself, amount to stay to the execution of the decree unless Appellate Court orders stay of execution of such decree.

21. Mr. Anturkar would urge that there can be no two views on the aforesaid position in law. However, there is an essential distinction between the executability and enforceability of the decree. And for the purpose of the Limitation Act, 1963, it is the enforceability of the decree that carries significance. The decree in the instant case, can be said to have become enforceable only upon the passing of the order of dismissal of the appeals by the Appeal Court on 1 October 2007.

22. At this juncture, before consulting the judgment in the case of Chandi Prasad and Ors. (supra), premised on which the aforesaid submission was sought to be built by Mr. Anturkar, it may be advantageous to refer to the decision in the case of Ratansingh (supra), a two judge Bench judgment of the Supreme Court which necessitated the reference to the larger Bench in the case of Chandi Prasad and Ors. (supra).

23. In the case of Ratansingh (supra), the appellant-decree holder was successful in obtaining a decree for possession of the suit property on 14 December 1970. First appeal preferred thereagainst by the Respondents therein was dismissed by the appellate Court on 1 August 1973. The decree holder filed Execution Petition on 24 March 1988, much beyond the stipulated period of limitation. In the meanwhile, the High Court had on 31 March 1976 rejected the application for condonation of delay in filing the Second Appeal by the Respondents. The decree holder made an endeavour to utilize the said order of dismissal of the application for condonation of delay in preferring Second Appeal dated 31 March 1976 as the order into which the decree passed by the trial Court had merged.

24. In the aforesaid context, the Supreme Court considered and answered the question when the decree in the said case became enforceable, in the following words:

16. So the end result is this: The decree became enforceable on 1.8.1973 when the appellate court passed the decree which superseded the decree of the trial court. As no decree was passed by the High Court in the second appeal the decree of the first appellate court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years therefrom. The execution process initiated by the appellant long after the expiry of 12 years from 1.8.1973 is thus irretrievably barred. Hence no interference is called for. The appeal is accordingly dismissed.”

25. The correctness of the aforesaid view was doubted by another two Judge Bench of the Supreme Court and, thus, the matter came to be referred to the larger Bench in Chandi Prasad and Ors. (supra). In the said case, the Supreme Court considered the question as to what would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963, in the backdrop of the following facts: In a suit for partition, a preliminary decree was passed on 25 April 1962. A final decree was prepared on 7 May 1968. On 6 August 1968, Execution Petition was filed by the Respondents therein. In the meanwhile, against the final decree, First Appeal had been filed. The said First Appeal was dismissed by an order dated 21 March 1969. Second Appeal thereagainst was allowed and the matter was remanded back to the first Appellate Court. By a judgment and decree dated 4 January 1974, first Appellate Court again dismissed the appeal. Second Appeal thereagainst was dismissed by the High Court on 18 April 1985. Pursuant to the judgment and decree passed by the High Court, a formal decree was drawn on 30 October 1986. An application for execution of the decree was filed by the Respondents – decree holders on 26 March 1997. The appellants therein assailed the tenability of the Execution Petition on the ground that it was barred by limitation. The executing Court allowed the application. In a Misc. Appeal, the District Court set aside the order of the Executing Court. The High Court declined to interfere with the order passed by the Appellate Court holding that the Execution Petition was not barred by limitation.

26. The Supreme Court, after adverting to the change in law relating to limitation for execution of the decree, which was to be found in Section 48 of the Code (since repealed) and Articles 182 and 183 of the Limitation Act, 1908 (Old), and substitution thereof by Article 136 of the Limitation Act, 1963 (extracted above), expounded the law as under:

27. The Supreme Court also referred to the doctrine of merger and the circumstances in which the order passed by the trial Court merges into the order passed by the Appellate Court, as under:

28. After enunciating the law, the Supreme Court further held that the

9 ILR (2002) 1 Del. 33 decision in the case of Ratansingh (supra), had no application to the facts of the case in Chandi Prasad (supra), as in the latter case, the High Court upon dismissal of the Second Appeal had drawn up a formal decree on 30 October

1986. In contrast, in the case of Ratansingh (supra), it was held that when a dismissal of an appeal takes place on the ground of its being time-barred, no decree is passed. Thus, it was held that the execution petition was filed within the stipulated period of limitation from the date of the decree by the High Court on 30 October 1986.

29. On a careful reading of the judgments in the cases of Chandi Prasad and Ors. (supra) and Ratansingh (supra), it becomes abundantly clear that these two judgments were rendered in a completely distinct fact situation. In the case of Chandi Prasad and Ors. (supra), the Second Appeal was decided on merits and, upon the judgment of the High Court in the Second Appeal, a formal decree was drawn by the High Court. Whereas, in the case of Ratansingh (supra), the High Court had declined to condone the delay in filing the Second Appeal, and, thus, there was no question of entertaining and deciding the Second Appeal on merits. The three Judge Bench judgment in the case of Chandi Prasad and Ors. (supra), therefore, cannot be strictly said to have overruled the decision in the case of Ratansingh (supra), though the referral order doubted the correctness of the view in the case of Ratansingh (supra). In the case of Chandi Prasad and Ors. (supra), the three Judge Bench simply noted that the decision in the case of Ratansingh (supra), had no application to the facts in the said case.

30. In the case of Shanthi (supra), following the decision in the case of Chandi Prasad and Ors. (supra), a two Judge Bench reiterated the law as under: “7…...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 time.

8. 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. Hence, in our considered view, the execution petition filed by the respondent-Plaintiffs is within time, consequently the appeal fails and stands dismissed.”

31. A profitable reference can be made to the decision of the Supreme Court in the case of Kunhayammed and Ors.V/s. State of Kerala and Anr.10 wherein the Supreme Court considered the import of the doctrine of merger and expounded the principles. It was observed that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way – whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.

32. In the light of the aforesaid exposition of law, two questions wrench to the fore. First, whether the order passed by the Appellate Court dismissing the appeals in default amounts to a decree ? Second, could it be said that the decree passed by the trial Court on 9 March 2001 merged with the said order of dismissal of the appeals in default on 1 October 2007, in view of the application of the doctrine of merger ?

33. The first question need not detain the Court. The definition of the decree under Section 2(2) of the Code is explicitly clear. It declares, inter alia, that the “decree” shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Since the appeals were dismissed in default of the appearance of Defendant Nos.[1] and 2, the said order dated 1 October 2007 does not amount to a decree.

34. Mr. Anturkar attempted to salvage the position by canvassing a submission that the definition under Section 2(2) of the Code, cannot be imported to determine the aspect of enforceability of the decree within the meaning of Article 136 of the Limitation Act, 1963.

35. I find it rather difficult to accede to this submission. The definition of “decree” under Section 2(2) of the Code, cannot be read in a truncated form. To make Article 136 of the Limitation Act applicable and ascertain the period of limitation, it is necessary to first determine whether the order sought to be executed amounts to decree. It is more so for the reason that Article 136 provides a period of limitation for both the execution of any decree and order passed by any Civil Court. The legislature has designedly used the word ‘decree’ or ‘order’ in the very same Article. Conversely, the term ‘decree’ or ‘order’ has not been defined under the Limitation Act. Since Article 136 provides the period of limitation for execution of any “decree” (other than one for mandatory injunction) or “order” passed by any Civil Court, of necessity the definitions of the “decree” and “order” under the Code, deserve to be considered while determining the aspect of enforceability of the decree.

36. On the second question of merger, the decision in the case of Chandi Prasad and Ors. (supra), makes the position abundantly clear. The Supreme Court has, in terms, observed that when the appellate Court passes a decree, the decree of the trial Court merges with the decree of the appellate Court. The merger of the decree takes place irrespective of the fact as to whether the appellate Court affirms, modifies or reverses the decree passed by the trial Court. The underlying postulate is that there cannot be more than one operative decree governing the same subject matter, at a given point of time. The Supreme Court clarified that when an appeal is dismissed on the ground that the delay in filing the appeal has not been condoned, the doctrine of merger will not apply.

37. Shanthi (supra), reiterates the position by observing that when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The necessary corollary is that where the appeal Court does not decide the matter on merits and either refuses to entertain the appeal on the ground that there was no sufficient cause for condonation of delay in filing the appeal or dismisses the appeal for want of prosecution, it cannot be said that the appellate Court has passed such order which has the effect of reversing, modifying or affirming the order passed by the trial Court. In effect, there is no “order” passed by the Appellate Court into which the “decree” passed by the trial Court can legitimately merge.

38. The matter can be looked at from a slightly different perspective. The underlying postulate of doctrine of merger is that there cannot be more than one operative decree governing the same subject matter, at a given point of time. If an appeal against the decree passed by the trial Court is dismissed in default, could it be said that thee are more than one decrees affecting the same subject matter. In such a situation, it is only the decree passed by the trial Court which holds the field and can be put to execution. Thus, the very foundational premise for the application of the doctrine of merger is non-est in such a situation.

39. The decision in the case of Antonysami (supra), on which reliance was placed by Mr. Walawalkar appears to govern the facts of the case at hand. In the said case, the trial Court had passed a decree for specific performance of the contract of sale in the following terms: “(1) The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq. ft. in the property described hereunder on or before 23.9.1966. (2) That the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq. ft. on measurement and demarcation. (3) That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the suit house-sites in favour of the plaintiff at her costs as agreed and in default the court do execute the sale deed on application of the plaintiff and the cost of the execution of such sale deed be recovered from the defendant. (4) That the defendant do pay to the plaintiff the sum of Rs.1,423/- being costs of this suit and do bear his own costs of Rs.507.50.”

40. The decree holder did not seek execution of the decree within the stipulated period of limitation and took a stand that the decree was conditional as the Defendant was ordered to measure and demarcate the property, which the Defendant had failed. Repelling the contention, the Supreme Court observed as under: “12……..On reading the decree in its entirety it is clear to us that in paragraph 1 thereof the Court specifically issued a direction to the judgment-debtor to measure and demarcate the boundaries of 13 grounds and 491 sq. ft. of land on or before 23.9.1966. In para 2 the Court directed the plaintiff to deposit in the Court on or before 23.9.1966 the balance of the sale price for 13 grounds 491 sq. ft. of land measured and demarcated. In paragraph 3 of the decree is incorporated the direction that on such measurement and demarcation and on deposit of the amount fixed in the decree, the judgment-debtor was to execute the sale deed in respect of the suit sites in favour of the decree-holder at her cost as agreed and in default the Court would execute the sale deed on application of the decree-holder and the cost of the execution of such sale deed was to be recovered from the judgment-debtor. The Court took care to fix the same date i.e. 23.9.1966 for both the parties to comply with the respective directions issued to them under the decree; the judgment-debtor to measure and demarcate the boundaries of the property and the decree-holder to deposit in Court the balance of the sale price of the property so measured and demarcated. The execution of the sale deed was to be done after the parties carried out the directions issued to them and that is what has been stated in paragraph 3 of the decree, with the default clause that in case the defendant failed to execute the sale deed, on application of the plaintiff, the executing court was to execute the same and the cost was to be recovered from the defendant. Such a decree cannot be said to be a conditional one, in the sense that the plaintiff could not enforce his rights under the decree till defendant carried out the direction under the decree for measurement and demarcation of the land.

13. The position is well settled that ordinarily a decree becomes enforceable immediately after the judgment is pronounced. However, there may be situations when a decree may not be enforceable on the date it is passed. Usually this situation arises where in the decree itself the right of the decree-holder depends on happening of certain event or on fulfillment of certain other conditions by the parties in the case or by an external agency, under any provision of law……….. ………

17. The fixation of periods of limitation are bound to be to some extent arbitrary and may at times result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical, meaning of the words is the only safe guide. (See Nagendra Nath Dey V/s. Suresh Chandra Dey11 ). The decree was enforceable immediately after the date specified in the decree i.e. 23.9.1966 for the decree-holder to deposit the consideration money. If the direction given in the decree to the judgment-debtor to measure and demarcate the land by that date (23.9.1966) was not complied with the decree- holder was free to execute the decree. The steps to be taken by the decree-holder in this regard are provided in Order 21 Rule 34(1) CPC.

18. In the case in hand a specified date was mentioned in the decree for the judgment-debtor to carry out the aforementioned direction i.e. 23.9.1966 and if he failed to carry out the direction it was open to the decree-holder to seek help of the executing court for measurement and demarcation of the land, and thereafter, to get the sale deed executed by the judgment-debtor if possible or by the Court if necessary. The decree-holder for reasons best known to him did not choose to execute the decree till April

1980. In the facts and circumstances of the case and on a fair reading of the decree in the context of the provisions of Article 136 of the Limitation Act the conclusion is inescapable that the execution petition was filed after expiry of the period of limitation prescribed under the Act. The Appellate Court was right in dismissing the execution petition as time barred and the High Court committed no illegality in confirming the said order.”

41. The upshot of aforesaid consideration is that, in the case at hand, firstly, the order of dismissal of the appeals in default does not amount to a decree, and, secondly, the said order does not partake the character of an executable or enforceable order into which the decree passed by the trial court could merge. Resultantly, the decree passed by the trial Court became enforceable on the date it was passed and continued to be so till the period of limitation expired. Thus, the endeavour of the Petitioners – Plaintiff to cling on to the orders of dismissal in default of the appeals to breath life into the decree passed by the trial Court, does not merit countenance. Thus, no interference is warranted in the impugned order. The Writ Petition, therefore, deserves to be dismissed.

42. Hence, the following order: ORDER

(i) The Writ Petition stands dismissed.

(ii) Rule discharged.

(iii) No costs.