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2002 DIGILAW 66 (PAT)

Indradeo Sah v. Ram Naresh Sah

2002-01-15

NAGENDRA RAI

body2002
Judgment 1. The judgment-debtor-petitioner is aggrieved by the order dated 16.12.2000 passed by the Special Execution Munsif, Muzaffarpur, in Execution Case No. 1 of 1996 dismissing the objection raised by him with regard to executability of the decree on the ground of limitation. 2. The facts necessary for disposal of the present application are that the decree-holder-opposite parties filed Title Suit No. 178 of 1969/20 of 1975 for declaration of title and recovery of possession in respect of six and half dhurs of survey plot no. 863 and 4 kathas three dhurs of plot no. 864 M under Khata no. 461, situated in village Panapur, District Muzaffarpur. The said suit was decreed on 23.3.1975 and the defendant-judgment- debtor first party was directed to deliver possession within a month. 3. The defendant-judgment debtor- petitioner and others filed Title Appeal No. 19 of 1975/13 of 1992, which was finally heard by the 1st Additional District Judge, Muzaffarpur, on 21.9.1993 and the appeal was dismissed. The judgment-debtor- petitioner and others, thereafter, filed Second Appeal No. 17 of 1994, which was dismissed by this Court on 11.4.1994. 4. In the year 1996, an execution case was filed by the decree-holder- opposite parties for execution of the decree. The judgment-debtor-defendant failed to hand over the possession within the period stipulated in the decree. Thereafter, on 30.8.2000, the judgment-debtor filed an objection to the effect that the execution case was barred as it has been filed beyond 12 years from the date of trial court decree dated 23.3.75 in terms of Article 136 of the Limitation Act (for short the Act). The executing court rejected the said objection, hence the present revision application. 5. Learned counsel appearing for the petitioner submitted that under Article 136 of the Act, the period of execution of a decree is twelve years from the date when the decree of order becomes enforceable and in this case the decree, which was enforceable, was the decree of the trial court and the same is dated 23.3.1975 and the execution case was filed in 1996 much beyond twelve years and as such the same was barred and the court below committed a jurisdictional error in not holding so. 6. 6. Learned counsel for the decree- holder-opposite parties submitted that once the judgment of the trial court was subject to appeal and finally the second appeal was dismissed by this court on 11.4.1994 then the judgment of the trial court merged with the appellate decree and the date for counting for the purposes of twelve years will be the judgment or decree passed in the second appeal on 11.4.1994 and as such the execution case filed in 1996 was within time and the learned Execution Munsif has rightly rejected the objection of the judgment-debtor. 7. Article 136 of the Act runs as follows : Description of application Period of limitation Time from whicha period begins to run. 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years. (When) the decree or order becomes enforceable or 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, when default in making the payment or delivery in respect of which execution 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. 8. From a perusal of the said Article, it is clear that for the execution of the decree, other than a decree granting a mandatory injunction or order of any Civil Court, the period of twelve years is to be counted from the date the decree or order becomes enforceable or in a case where a different date has been fixed for payment of money or for delivery of possession, in that case the date is to be counted when the default in making payment or giving delivery of possession takes place. The bar of limitation is not applicable in case of a decree of perpetual injunction. 9. In this case, the question for consideration is as to from which judgment and decree the period of twelve years is to be counted when the judgment and decree of the trial court is under appeal. The said Article does not speak of a judgment or decree of a trial court, rather it talks of a decree or order. 9. In this case, the question for consideration is as to from which judgment and decree the period of twelve years is to be counted when the judgment and decree of the trial court is under appeal. The said Article does not speak of a judgment or decree of a trial court, rather it talks of a decree or order. Once an appeal is filed and the appeal is disposed of by the appellate court then the judgment or decree of the trial court merges with the judgment or order of the appellate court and that judgment or decree becomes enforceable and the period of twelve years is to be counted from that date. In other words, whenever there is an appeal, it is the decree of the appellate court which is enforceable and no decree of the trial court on the principle of merger of the decree of the trial court with the decree of the appellate court is enforceable. 10. So far as this Court is concerned, the said question is no longer res Integra. A Full Bench of this Court in the case of Jokhan Rai V/s. Baikunth Singh, reported in A.I.R. 1987 Patna 133 : 1987 PLJR 172 has held that for computing the period of limitation of twelve years under Article 136 of the Act, the relevant date is the date of the appellate decree in the event of an appeal and not that of the original decree. 11. Learned counsel for the petitioner, however, submitted that the view taken by the Full Bench of this court in the case of Jokhan Rai (supra) is no longer a good law in view of the recent judgment of the Supreme Court in the case of Ratan Singh V/s. Vijay Singh, reported in (2001) 1 S.C.C. 469 . 12. The learned counsel for the petitioner is not right in submitting so. In the case of Ratan Singh (supra) the trial court decreed the suit on 14.12.1970 and a first appeal filed by the defendant was dismissed on 1.8.1973. The second appeal filed before the High Court was dismissed on the ground of limitation on 31.3.1976. The execution case was filed on 24.3.1988. In the case of Ratan Singh (supra) the trial court decreed the suit on 14.12.1970 and a first appeal filed by the defendant was dismissed on 1.8.1973. The second appeal filed before the High Court was dismissed on the ground of limitation on 31.3.1976. The execution case was filed on 24.3.1988. The objection raised by the defendant-judgment-debtor in that case was rejected by the lower court and the High Court on the ground that it was within twelve years from the date of dismissal of the second appeal by the High Court on the ground of limitation. Dealing with the said matter, the Apex Court held that the rejection of the application for condonation of delay in filing the second appeal and consequential dismissal of the appeal as time-barred is not a decree and as such the period is to be counted from the date of dismissal of the First Appeal and the application for execution was barred by limitation, in other words, in that case the second appeal was not dismissed on merit as in the present case, on the other hand, the limitation petition filed for condoning the delay was dismissed and consequently the appeal was dismissed and the Apex Court held that such a dismissal is not a decree and as such it has no effect on the decree passed by the first appellate court and, accordingly, allowed the objection of the defendant-judgment debtor. 13. In my view, the aforesaid decision, on the other hand, supports the view taken by the Full Bench of this Court that if the appellate court has disposed of the matter on merit, which resulted in passing of a judgment and decree then that is the date from which the decree becomes enforceable. Thus, the said decision of the Apex Court in the case of Ratan Singh (supra) is not applicable in this case. Thus, the said decision of the Apex Court in the case of Ratan Singh (supra) is not applicable in this case. However, f would like to mention that a Four Judges Bench of the Supreme Court in the case of Sheodan Singh V/s. Daryao Kunwar, reported in A.I.R. 1966 Supreme Court 1332, while dealing with the question of res judicata, held that where an appeal arising out of a judgment or order of a trial court is dismissed on preliminary grounds, like limitation or default in printing, with the result that the trial courts decision stands confirmed, the decision of the appellate court will be res judicata and the appellate court must be deemed to have heard and finally decided the matter. In such a case, the result of the decision of the appellate court is to confirm the decision of the trial court given on merits. However, as stated above, the decision relied upon by the petitioner in the case of Ratan Singh (supra) was rendered in a different set of facts and as such the same is not applicable in this case. 14. In the result, I find no merit in this Civil Revision and the same is dismissed.