1. The applicant- judgment debtor has directed this revision under Section 115, being aggrieved by the order dated 1.5.2006 passed by Ist Civil Judge Class-II, Vaidhan in execution Case No. 45-A/79 (1999) dismissing his application filed for dismissal of such execution proceeding on the ground of principles of res judicata and holding the same to be barred by time.
2. The brief facts of the case necessary to consider the question of admission of this revision in short are that respondents herein filed a Civil Suit bearing 45-A/79 against the applicant for declaration and possession with respect of the land bearing Kh. No. 416/01 area 0.21 acre, situated at village, Binlagi, District Singhrouli. After holding the trial such suit was decreed by the trial court, vide judgment dated 20.8.01. On challenging such decree by the applicant herein, before the appellate court, on consideration by affirming such decree such appeal was dismissed. Such decree of subordinate appellate court was also challenged by the applicant before this court under Section 100 of CPC which was also dismissed, vide order dated 1.10.1996. This fact has also come on record that in pendency of the aforesaid appeals subject to some conditions the execution of the impugned decree was stayed. But on account of non compliance of the conditions of such order the same did not remain operative.
3. Subsequent to dismissal of the aforesaid second appeal by this court, vide dated 1.10.1996 the respondents herein filed the execution proceeding before executing court on 6.1.1997, in which to deliver the possession of disputed land to the respondents, a warrant of possession was issued against the applicant judgment debtor, the same was received back with some report of Revenue Inspector. On certain reasons such report of Revenue Inspector was objected on behalf of respondents, on which, vide order dated 11.5.1999 the executing court called the report of Tahsildar on certain points. When such report was not received from Tahsildar, then vide order dated 13.8.1999 again such report was requisitioned from Tahsildar with a direction to place the same on 16.8.1999. But due to non payment of process fee by the decree holder such report for want of intimation to Tahsildar could not be received till 16.8.1999, on which again such report was called and case was fixed for such report on 28.8.1999 but till such date no such report was received inspite it on 28.8.1999 in later hours of the day in the absence of the respondents only in presence of the applicant's counsel without calling the Tahsildar report in compliance of the order dated 11.5.1999 and 13.8.1999, on the basis of aforesaid disputed warrant of possession by recording the full and final satisfaction of the decree the execution proceeding was dismissed.
4. Such order of the executing court dated 28.8.1999 was assailed by the respondents before this court in Civil Revision No. 2237/99 and vide dated 2.2.2000 on hearing of such revision, the same was withdrawn by the respondents with liberty to move the appropriate application before the executing court. Pursuant to such liberty an application for executing the above mentioned decree was filed on behalf of the respondents in the executing court on dated 16.4.04. Subsequent to it, the applicant herein filed an application on 15.7.04 for dismissal of the aforesaid execution application on the ground of principle of res judicata and also by holding the same to be barred by limitation. As per averments of it, on dismissal of the earlier filed execution proceeding after recording full and final satisfaction of the decree, vide dated 28.8.1999, such subsequent execution application being hit by principle of res judicata is not entertainable. As per further averments, subsequent to passing the decree by the trial court, the same was challenged in appeal by the applicant, in which subject to some condition the stay was granted but on account of non compliance of such conditions of the stay the decree was remained operative since the date of passing the same by the trial court and in such premises, the decree holder was never restrained to execute the same, hence limitation to file the execution proceeding of such decree had started on the very day, i.e. 20.8.1991, on which the same was passed by the trial court and after twelve years from such date by virtue of Article 136 of Limitation Act the same is not remained executable and in such premises prayer for dismissal of the execution proceeding is barred by limitation is made.
5. In reply of the respondents, by disputing the averments, of the application, it is stated that the executing proceeding filed on dated 6.1.1997 was fixed before the executing court on 28.8.1999 for receiving the report of Tahsildar in compliance of the earlier orders and unless such report is received by the court, on the basis of disputed service report of possession warrant as stated in the order sheets dated 11.5.1999 and 13.8.1999, the executing court did not have any authority to record the full and final satisfaction of the decree nor dismissed the execution proceedings on such count. Inspite of that the same was dismissed under the wrong premises, vide order dated 28.8.1999. On which such order dismissing the execution proceedings was challenged on behalf of the respondents before this court through Civil Revision no. 2237/99. Subsequently such revision was withdrawn on 2.2.2000 with liberty to file fresh application for execution and thereafter under such liberty the impugned application for execution of the impugned decree was filed. So, firstly in view of the order of the Revisional Court extending the liberty to file fresh application, the impugned application of execution should be deemed to be filed in continuation of the earlier execution proceeding and in such premises the same could not be dismissed on the principle of res judicata. It is also stated that in any case such subsequent application of execution was filed within twelve years from the date of judgment passed by this court on dated 1.10.1996 in second appeal filed under Section 100 of CPC. As soon as the order is passed by the appellate court, the judgment and decree of Subordinate court are merged in such order and limitation to execute the decree is deemed to be started from the date of judgment or order of the appellate court. So in such premises, the instant execution proceeding could not be dismissed as barred by time and prayer for dismissal of the objection of the applicant is made.
6. On consideration, vide impugned order, by dismissing such objection of the applicant the execution was held to be entertainable, on which the applicant has come to this court with this revision.
7. Having heard the applicant's counsel at length on admission, keeping in view his arguments, after going through the impugned order and the papers placed on record, I am of the considered view that the executing court has not committed any jurisdictional error in holding the impugned execution proceeding maintainable by dismissing the objection of the applicant.
8. In view of the facts, stated above, it is apparent that initially the suit of the respondents was decreed by the trial court, vide order dated 20.8.1991 and in continuation of such suit second appeal was dismissed by this court, vide order dated 1.10.1996 and subsequent to that the respondents herein filed the execution proceeding firstly on dated 6.1.1997 well within limitation from the date of judgments of the trial court as well as of the second appeal. Undisputedly on issuing the warrant of possession under such execution, it's service report was received. On disputing the same by decree holder, vide order dated 11.5.1999 in that regard, on some points the report from Tahsildar was requisitioned. When it was not received on a date fixed for the same, then again some order in this regard was passed on dated 13.8.1999. Inspite that because of non payment of PF on behalf of the respondents the requisite report was not received, on which again vide order dated 16.8.1999 such report was requisitioned and case was fixed on 28.8.1999. On such date without receiving such report of the Tahsildar and also without assigning any specific reasons to rely on such disputed report of the Revenue Inspector on that basis after recording full and final satisfaction of the decree in the absence of the decree holders the execution was dismissed. In the civil proceeding if the plaintiff -applicant or the decree holders are not present, then no order could be passed on merits. In such premises, such execution would have been dismissed for want of prosecution and not on merits or in any case on the basis of disputed service report of warrant the executing court did not have any authority to record the full and final satisfaction of the decree. Subsequent to it, such order was challenged at the instance of the respondents before this court by way of revision No. 2237/99. On hearing the same on dated 2.2.2000, the respondents' counsel sought permission to withdraw the same with liberty to move the executing court by an appropriate application and on consideration after granting such liberty the revision petition was dismissed as withdrawn, as evident from Annexure A-7 with this revision.
9. The impugned execution proceeding was filed on behalf of the respondents under the aforesaid liberty, which was given by this court in the aforesaid revision filed in continuation of the earlier execution proceeding/application. Therefore, such application shall be deemed to be filed in continuation of the earlier execution proceeding. So same could not be dismissed either by holding to be barred by the principle of res judicate or by holding the same to be barred by limitation from the date of decree passed by the trial court. So in such premises, I have not found any perversity, infirmity or illegality or anything against the propriety of law in the order impugned rejecting the objections of the applicant.
10. Apart from the above for the sake of arguments, if it is deemed that subsequent to passing the order by this court in Civil Revision No. 2237/99, vide dated 2.2.2000 under such liberty, second execution proceeding was filed on behalf of the respondents in the executing court on dated 16.4.04, even then the same could not be thrown away holding the same to be filed after twelve years from the date of decree of the trial court as such on taking into consideration the spirit of the provision of Article 136 of the Limitation Act, it can be said safely that appeal being continuation of the suit, the judgment and decree of the subordinate courts merged in the decree of the appeal and pursuant to that the limitation to file the execution proceeding shall be deemed from the date of passing the judgment, decree by the last appellate court irrespective of the circumstance whether any interim stay order or interim injunction was passed against the judgment and decree appealed with some conditions and such conditions were not complied with by the party. So in such premises, the aforesaid execution filed on 16.4.04 being filed within twelve years from the date of judgment passed in second appeal is within limitation. My aforesaid view is fully fortified by the decision of Rajsthan High Court in the matter of Sayed Abdul Rauf, v. Nurul Hussain and others, AIR 1992 RAJASTHAN 3, in which it was held as under :-
10. As I have already observed, on the recommendation of the Law Commission, the Parliament enacted the present Art.136 which substantially re-produces the repealed S.48, C. P. C. and re-places Art. 182 of the old Limitation Act. This was done with a view to overcome the difficulty which used to be faced by the litigants and the Courts. Enactment of Art.136 has simplified the controversy and has provided that for the execution of any decree or order of any Civil Court, the period of limitation would be twelve years. This period of limitation begins to run "when the decree or order becomes enforceable". Whether there was a stay order or not, that was not material for the purposes of calculating the period of limitation and giving effect to the phrase 'when it becomes enforceable'.
11. It is settled law that the decree of the trial Court gets merged with the decree of the appellate Court and the letter supersedes the decree of the trial Court. This merger takes place irrespective of the fact that the appellate Court affirms, modifies or reverses the lower Court's decree......................"
11. Aforesaid case was decided by such High Court taking into consideration earlier decision of the Apex Court in the matter of "Gojer Brothers (P) Ltd., M/s. v. Ratan Lal Singh" AIR 1974 S. C. 1380 .
12. Aforesaid question is also answered by the Hon'ble Bombay High Court in the matter of Ramkrishna Bajirao Gotmare, Applicant v. Kanhaiyalal Tribhuwanlal Shah, reported in AIR 1990 BOMBAY 361 in which it was held as under :-
An appellate decree supersedes the original decree on the basis of doctrine of merger and only appellate decree is enforceable; and the new Act has not brought about any change in the above crystalized legal position. Such result would ensue even on the effect of O.41, R. 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. After all appeal is continuation of the suit. True, it is that the original decree is enforceable despite pendency of appeal if there is no stay, but that aspect is beside the point. Crux of the matter is, once it merges into the appellate decree, it ceases to rule. Accordingly, the limitation for execution of decree would commence from the date of appellate decree irrespective of whether original decree was stayed or not.
13.In view of aforesaid discussion, I have not found any merits in this revision even for admission, thus, the same is hereby dismissed at the initial stage of motion hearing. However, keeping in view the impugned execution proceeding is pending since long, the executing court is directed to take an endeavour to expedite the proceeding to execute the decree and conclude the same probably within six months from the date of receipt of the copy of this order. There shall be no order as to the costs.