JUDGMENT - MOHTA V.A., J.:---What is the starting point of limitation to file an application under Article 136 of the Limitation Act, 1963, for execution of a decree affirmed in appeal and when there was no stay, is a point to be determined in this civil revision application. That under the old Limitation Act, 1908, starting point was the date of appellate decree in such a situation, is not disputed before me. Contention is that the new Act has brought about a change in the legal position by which time begins to run form the date of passing of the original decree, since it is enforceable from that very date. Article 136 is worded as under: For the execution of Twelve years. When the decree or order becomes any decree (other than enforceable or where the decree or a decree granting a any subsequent order directs any mandatory injunction) payment of money or the delivery of or order of any Civil any property to be made at a certain Court. date or at recurring periods, when default in making the payment or delivery in respect of which execu- tion is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. 2. Basic facts lie within a narrow compass. A money decree for a sum of Rs. 6000/- and odd was passed by the trial Court on 30-7-1968. Appellate Court affirmed the said decree on 17-10-1969 and no stay under Order 41, Rule 5 of the Civil Procedure Code was even applied for by the Judgment debtor. Application for execution was filed on 30-4-1981. Judgment debtor contended that starting point of limitation would run from the date of original decree and thus the application was beyond limitation under Article 136 of the new Act. That objection is overruled open a view that starting point would be the date of appellate decree and not the original decree. Aggrieved thereby the present civil revision application is filed. 3. Section 48, Civil Procedure Code (now deleted) and Articles 182 and 183 of the Old Act covered the subject of limitation to execute various decrees. They read thus:- "Section 48(1). Aggrieved thereby the present civil revision application is filed. 3. Section 48, Civil Procedure Code (now deleted) and Articles 182 and 183 of the Old Act covered the subject of limitation to execute various decrees. They read thus:- "Section 48(1). Where an application to execute a decree not being decree granting an injunction has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed, or, (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree." Article 182: For the execution of Three years; 1. The date of the decree of order, or a decree or order of or where a 2. (where there has been an appeal) any Civil Court not certified the date of the final decree or order provided for by copy of the of the Appellate Court or the with- Article 183 or by decree or drawal of the appeal, or section 48 of the order has 3. (where there has been a review of judg- Code of Civil been regis- ment) the date of the decision passed on Procedure, 1908. tered, six the review, or years. 4. (where the decree has been amended) the date of amendment, or 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or 6. (in respect of any amount recovered by execution of the decree or order which the decree holder has been directed to refund by a decree passed in a suit for such refund) the date of such last mentioned decree or in the case of an appeal therefrom, the date of the final decree of the Appellate Court or of the withdrawal of the appeal or, 7. (where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. (where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. Explanation I. Where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the subject matter as payable or deli- verable to each, the application mentioned in Clause 5 of this Article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of them, or by his or their repre sentatives, shall take effect in fa- vour of them all. Where the decree or order has been passed severally against morepersons than one, distinguishing portions of the subject-mat- ter as payable or deliverable to each, the application shall take effect against only such of the said persons or their repre- sentatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more or them, or against his or their represent- atives, shall take effect against them all. Explanation II. "Proper Court" means the Court whose duty it is to execute the de cree or order," Article 183: To enforce a Twelve years When a persent righ to enforce the judgment, decree judgment, decree or order accrues or order of any to some person capable of releasing Court established the right: by Royal Charter in the exercise of its ordinary civil jurisdiction, or an order of the Supreme Court. Article 183 dealt with decrees or orders of any Court established by Royal Charter in the Exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court and provided a period of 12 years for filing the application for their execution. Article 182 read with Section 48 of the Code dealt with decrees of all other Civil Courts. Section 48 of the Code provided outer limit of 12 years for filing fresh application and Article 182 governed the first and successive applications as step-in-aid to be made within a period of three years from various points of time referred to in the said Article. Section 48 of the Code provided outer limit of 12 years for filing fresh application and Article 182 governed the first and successive applications as step-in-aid to be made within a period of three years from various points of time referred to in the said Article. Absence of any one of the requirements rendered the application time barred. 4. Law Commission of India in its III Report 1956 on examining various provisions of the old Act and the abundance of conflict of case law, suggested that there was no justification either to continue the distinction between the types of decrees or orders made in Articles 182 and 183, or to allow the subject to be dealt with by two different enactments or to retain the requirement of keeping the application alive every three years. The relevant part of the Report says: "There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable after a period of 12 years. In England also the time fixed for enforcing a judgment is 12 years. Either the decree holder succeeds in realising his decree within this period or he fails ad there should be no provision enabling the execution of a decree after that period. To this provision an exception will have to be made to the effect that the Court may order the execution of a decree upon an application presented after the expiration of the period of 12 years, where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the application. Section 48 of the Civil Procedure Code may be deleted and its provisions may be incorporated in this Act. Article 183 should be deleted and the decrees of the High Court must be placed on the same footing as decrees of other courts. There is no justification for making a distinction between decrees or orders passed by the High Court in the exercise of their original civil jurisdiction or orders of the Supreme Court and other decrees." The Statement of Objects and Reasons attached to the Bill virtually reproduces the above part of the Report. By section 28 of the new Act. Section 48 of the Code was deleted and one consolidated Article 136 governing the subject was introduced. By section 28 of the new Act. Section 48 of the Code was deleted and one consolidated Article 136 governing the subject was introduced. Article 136 is thus a package prepared out of assorted provisions of Articles 182 and 183 of the old Act and old section 48 of the Code. Close examination of the Report, the statement of objects and reasons attached to the Bill, section 48 of the Code, Articles 182 and 183 of the old Act and Article 136 of the new Act do not do not indicate that letter and/ or sprit of section 48(1) of the Code or Article 183 of the old Act was in any way intended to be tinkered with. The only intention was to do away with separate limitation for different types of decrees, to do away with the requirement of taking step-in-aid every three years for keeping the decree alive and to incorporate the whole law on the subject in one enactment and in one Article. The similarity in the expressions "the date of the decree sought to be executed" used in section 48 of the Code and "when a present right to enforce the judgment, decree or order" used in Article 183 of the old Limitation Act and "when the decree or order becomes enforceable" used in Article 136 of the new Act is of great relevance. All that Art. 136 aims at is to provide only one period of limitation with a single terminus a quo which is the date when the decree or order becomes enforceable. 5. Since there are many decided cases on the question under the old Act and they have taken consistent view, it will be but proper to notice a few of them, because, it will have to be presumed that Law Commission as well as the Parliament were aware of the crystallized legal position then prevailing. I begin with an old Division Bench decision of this Court in the case of (Harilal Dalsukhram Saheba v. Mulchand Ashram)1, A.I.R. 1930 Bom. 225 wherein it is observed: "The Principle relied on by Mr. Thakor is, that when once an appellate decree is passed, whether it confirms, varies or reverses that of the original Court, it is the only decree which can be executed for it has been substituted for that of the original Court". 225 wherein it is observed: "The Principle relied on by Mr. Thakor is, that when once an appellate decree is passed, whether it confirms, varies or reverses that of the original Court, it is the only decree which can be executed for it has been substituted for that of the original Court". In the case of (Nagendra Nath Dey and other v. Suresh Chandra Dey and others)2, A.I.R. 1932 Privy Council, 165 it is held: "It is at least an intelligible Rule that so long as there is any question sub-judice between any of the parties those affected shall not be compelled to pursue the soften thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a cease as this is the judgment debtor, prejudied. He may indeed obtain the boon of delay, which is so dear to debtor, if he is virtuously inclined there is nothing to prevent his paying which he owes into Court". Above decisions are based on the doctrine of merger and/ or incorporation. After all appeal is continuation of the suit. Though not in the context of a Civil Court decree but in the context of an order passed under the Income Tax Act in the case of (Commissioner of Income Tax, Bombay v. M/s. Amritlal Bhogilal and Co.)3, A.I.R. 1958 S.C. 868, the Supreme Court observed: "There can be no doubt that, if an appeal is provided against an order passed by a Tribunal, the decision of the Appellate Authority is the operative decision of law. If the Appellate Authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. If the Appellate Authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the Appellate Authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement." In the case of (Collector of Customs, Calcutta v. East India Commercial Co., Ltd. Calcutta and others)4, A.I.R. 1963 S.C. 1124, it is observed: "It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the Rule that the decree of the Lower Court merges in the decree of the Appellate Court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the Appellate Authority whatsoever its decision whether of reversal of modification or mere confirmation." If despite consistency in applying the doctrine of merger of appellate decree/order on the original decree/order, any changes was intended by the Legislature it would have been made by using the express words. Not only there is no such indication either in the new Act, the statement of objects and reasons attached to the Bill, or the Report, but words almost similar to those in section 48(1) of the Code or Article 183 of the old Act have been used in Article 136. It is pertinent to notice that Article 136 used the expression " any decree" and not " original decree". After the new Act came in to force the Supreme Court in the two cases (i) (M/s. Gojar Brothers (P) Ltd., v. Shri Ratan Lal Singh)5, A.I.R. 1974 S.C. 1380 and (ii) (Laxmi Narayan Guin and others v. Niranjan Modak)6, A.I.R. 1985 S.C. 111, both rendered under the W.B. Premises Tenancy Act, reiterated its view that the trial Court decree merges in the appellate decree and it is that decree lone whether affirming, varying or modifying which Rules. 6. 6. Thus the conclusion is inevitable that consistent legal position has been that an appellate decree supersedes the original decree on the basis of doctrine of merger, only that superseded decree is enforceable; and the new Act has not brought about any change in the above crystallized legal position. Such result would ensue even on the effect of Order 41, Rule 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. In this connection useful reference may be made to the case of (Anandilal and another v. Ram Narayan and others)7, A.I.R. 1984 S.C. 1383, wherein in the context of section 48 of the Code, it is observed: "It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Neverthless, it is, we think permissible to adopt a beneficent construction of a Rule of limitation it alternative constructions are possible." 7. It is contended that absence of provision like Article 182(2) in the new Act indicates that extension of time upto the date of the appellate decree was not intended in the new Act. I do not think that to be a deciding factor. 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 in to the appellate decree, it ceases to Rule. It is also contended that in that view of the matter, section 15 of the new Act would be rendered otiose. Those provisions provide for exclusion of time during which order of stay operated. I do not see how the said section is rendered otiose. Stay referred therein is not confined to the stay granted by the appellate court. Moreover, such provision existed even in the old Act. Section 15 operates upon altogether different field and circumstances. 8. My attention was drawn by Moharir, the learned Counsel for the judgment debtor to the following observations in the case of (Quseph v. Lona)8, A.I.R. 1979 Kerala 14, which no doubt to some extent supports the contention raised by him. Moreover, such provision existed even in the old Act. Section 15 operates upon altogether different field and circumstances. 8. My attention was drawn by Moharir, the learned Counsel for the judgment debtor to the following observations in the case of (Quseph v. Lona)8, A.I.R. 1979 Kerala 14, which no doubt to some extent supports the contention raised by him. "Section 48 of the Civil Procedure Code was found to be no longer necessary when Article 182 of the repealed Act was replaced by Article 136 of the Present Act. That is why section 48 of the Civil Procedure Code was repealed by section 28 of the Present Act. The principle of section 48, Civile Procedure Code is now embodied in Article 136 of the present Act which provides for a 12 years period of limitation for the execution of a decree. The period begins to run from the date on which the decree became enforceable and that in the present case was the date of the decree itself. Although the decree underwent a change with its amendment on 24-7-1962, until the date of the amendment, the decree in its original form was enforceable as from the date on which it was passed, that is, 28-6-1961. It was that date which is crucial for computing the period of limitation as provided under Article 136. That being the case the execution petition filed on 23-2-1974 is out of time." And so also to the case of (Kaliprasad v. Bhagwatiprasad)9, A.I.R 1980 Patna 280. In those cases no submissions based on doctrine of merger seem to have been advanced. 9. Though case law on Article 136 does not appear to be unanimous, preponderance of view seems to favour the conclusions reached by me. Patna decision (supra) has been overruled in the case of (Jokhan Rai v. Baikunth Singh)10, A.I.R. 1987 Patna 133 (F.B.) and there seems to be a conflict of opinion on the subject in Kerala High Court, for in the subsequent decision in the case of (Nanikutty Amma Kamalamma v. Trivandrum Permanent Bank)11, A.I.R. 1987 Kerala 163 a different note is struck. It appears that the earlier decision was not brought to the notice of the learned Judge in the latter case. The other supporting decisions are (1) (Shyama Pada Choudhary v. Saha Choudhary and Co. It appears that the earlier decision was not brought to the notice of the learned Judge in the latter case. The other supporting decisions are (1) (Shyama Pada Choudhary v. Saha Choudhary and Co. and others)12, A.I.R. 1976 Calcutta 122; (2) (S. Kharak Singh v. Harbhajan Singh)13, 1978 Punjab Law Reporter 634; (3) (Posani Ramchandraiah v. Daggupati Sheshamma)14, A.I.R. 1978 Andhra Pradesh 342 and (4) (Abdul Razzak v. Izzat Ali)15, A.I.R. 1979 All. 23. 10. In the ultimate analysis, I hold that the application for execution was not beyond time and there is no merit in this civil revision. I dismiss it and discharge the Rule but with no order as to costs. Execution to proceed. Revision dismissed. -----