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Andhra High Court · body

2009 DIGILAW 446 (AP)

Fateh Mohammed v. Fareeda Banu A Khursheed Banu

2009-07-10

R.KANTHA RAO

body2009
Judgment :- This civil revision petition is directed against the order passed by the Principal Junior Civil Judge, Warangal on 19.06.2006 in E.P.No.820 of 2003 in O.S.No.906 of 1989. 2. The judgment-debtor/defendant is the revision petitioner herein. The decree-holder/plaintiff filed E.P. against the revision petitioner under Order XXI Rule 32 of CPC. The executing Court after making an enquiry into the E.P., allowed the same. 3. Feeling aggrieved, the revision petitioner filed the present revision petition. 4. The background facts, leading to filing of the revision, may be briefly stated, as follows: The respondent-decree-holder filed the suit for perpetual injunction against the revision petitioner in respect of the E.P. schedule property, which is a vacant site of an extent of 203 square yards. The learned trial Court while passing the decree on merits, noticed the fact that the revision petitioner without having a pretence of claim in the schedule mentioned property, illegally raised some constructions therein during the pendeny of the suit. Thus, the trial Court while passing decree, apart from granting relief of perpetual injunction also passed a decree granting mandatory injunction in favour of the respondent and against the revision petitioner directing him to remove the structures raised by him in the schedule mentioned property and also directed him to restore the possession of the said portion of the property to the respondent. 5. In A.S.No.41 of 1997 which was preferred by the revision petitioner/judgment debtor therefrom, the III Additional District Judge, Warangal confirmed the decree and judgment passed by the trial Court and granted one month time to the revision petitioner to remove the structures raised by him in the schedule mentioned property illegally during the pendency of the suit and directed him to hand over the vacant site to the respondent decree-holder. The E.P. filed to enforce the said decree and judgment was allowed by the executing Court. 6. It has been contended by the revision petitioner before the executing Court as well as this Court that the period of limitation prescribed by Article 136 for executing a decree for mandatory injunction is three years. In the instant case, the respondent filed E.P. more than three years after passing of the decree by the Court of first instance and therefore, the E.P. is barred by limitation, even though it is filed within three years from the date of passing of the decree by the appellate Court. In the instant case, the respondent filed E.P. more than three years after passing of the decree by the Court of first instance and therefore, the E.P. is barred by limitation, even though it is filed within three years from the date of passing of the decree by the appellate Court. 7. The said contention was rejected by the executing Court holding that the appeal is a continuation of the original suit, the decree passed by the trial Court merged with the decree of the appellate Court, the appellate Court passed the decree on 09.08.2002, the E.P. is filed on 15.10.2003 and therefore, the E.P. is not barred by limitation. 8. The question therefore, arises for determination in this revision is whether the above mentioned order passed by the executing Court holding that the limitation starts from the date of passing of the decree of the appellate Court in a proceeding for execution relating to a decree for mandatory injunction can be sustained. 9. I have heard the learned counsel appearing for the revision petitioner as well as the respondent. 10. The learned counsel appearing for the revision petitioner would submit that mere filing of appeal shall not operate as stay of proceedings under a decree and the execution petition which was filed by the respondent is barred by limitation as it was not filed within three years from the date of decree passed in the original suit. 11. On the other hand, the learned counsel appearing for the respondent would submit that the executing Court rightly allowed the execution petition by holding that the appeal is a continuation of the original suit and the order passed in the E.P. does not require any interference in this revision. 12. It is true that Rule 5(1) of Order XLI of CPC lays down that the appeal shall not operate as a stay of proceedings under a decree, 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 and in view of mere pendency of appeal, the respondent herein cannot contend that the decree passed in the original suit was stayed automatically. However, the crucial question is about the starting point of limitation. However, the crucial question is about the starting point of limitation. Rule 5 of Order XLI of CPC does not state anything as to against which decree, the execution can be taken up. 13. Reliance is placed by the learned counsel appearing for the revision petitioner, on the following decisions: 1) SIRAJ-UL-HAQ KHAN AND OTHERS, v. THE SUNNI CENTRAL BOARD OF WAKF, U.P. AND OTHERS ( AIR 1959 SC 198 ) wherein the Apex Court held that for excluding the time under Section 15 of the Limitation Act, it must be shown that the institution of the suit in question had been stayed by an injunction order, in other words the section requires an order or an injunction which stays the institution of the suit. 2) NANDIGAMA VENKATA KRISHNA RAO v. MULLPUDI GANESWARA RAO ( AIR 1971 AP 246 ), where the learned single Judge of this Court held that while computing the limitation for an application for execution, the decree-holder is not entitled to exclude the time spent in prosecuting an appeal or second appeal against a claim suit under Order 21, Rule 63 of CPC when there was no order or injunction restraining him from filing execution application. The reason is that for excluding time under this section it must be shown that the institution of the suit in question had been stayed by an injunction or order. 3) A. KRISHNARAJ v. VASANTHA GOPAL AND OTHERS (AIR 1990 MADRAS 83) wherein the single Judge of Madras High Court held that in computing the period of limitation for filing of execution petition relating to a decree for mandatory injunction, the period during which the execution was stayed by order of Court should be excluded, in view of section 15(1) of the Act. 14. It is the submission of the learned counsel appearing for the revision petitioner that unless the execution of the decree was stayed by the order of the appellate Court, the period mentioned in Article 135 of the Limitation Act commences to run from the date of the decree passed in the original suit. The time spent during the pendency of the appeal cannot be excluded in view of Section 15 of the Limitation Act. 15. But, indisputably an appeal is a continuation of the proceedings of the original suit. The time spent during the pendency of the appeal cannot be excluded in view of Section 15 of the Limitation Act. 15. But, indisputably an appeal is a continuation of the proceedings of the original suit. When the decision passed in the original suit is under consideration of the first appellate Court, the whole matter is at large. The first appellate Court is under a duty to reappraise the entire evidence on record in the light of the contentions urged by both parties afresh. 16. In DILIP v. MOHD.AZIZUL HAQ AND ANOTHER ( (2000) 3 SCC 607 ) it is held as follows: "Once a decree passed by a court has been appealed against the mater becomes sub-judice again and thereafter the appellate court acquires seisin of the whole case. A court of appeal shall have the same powers and shall perform as nearly as many be the same duties as conferred and imposed on courts of original jurisdiction. The hearing of an appeal under the processual law of the country being in the nature of a rehearing and it is on the theory of an appeal being in the nature of a rehearing that the Courts in this country have, in numerous cases, recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. As an appeal is a rehearing, it must follow that if an appellate court dismisses an appeal it would be passing a decree affirming eviction and thereby passes a decree of its own, and in the event it upsets the decree of the trial court, it would be again passing a decree of its own resulting in merger of decree of the trial court with that of the appellate court. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding." 17. Similarly, in UNION OF INDIA AND OTHERS v. WEST COAST PAPER MILLS LTD. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding." 17. Similarly, in UNION OF INDIA AND OTHERS v. WEST COAST PAPER MILLS LTD. AND ANOTHER ( (2004) 2 SCC 747 ) the Apex Court held as follows: "It may be true that by reason of Section 46-A of the Indian Railways Act the judgment of the Tribunal was final but by reason thereof the jurisdiction of this Court to exercise its power under Article 136 of the Constitution of India was not and could not have been excluded. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a court or tribunal. Once a special leave is granted and the appeal is admitted, the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the court of appeal. The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realized would, thus, begin from the date of the order passed by this Court. It is also not in dispute that the respondent herein field a writ petition which was not entertained on the ground stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition was pending, excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view." 18. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view." 18. What emerges from the above two decisions rendered by the Apex Court is that when once the decree and judgment passed by the trial Court is appealed against, and the judgment is rendered by the appellate Court either affirming or dismissing the appeal the decree passed in the original suit becomes inoperative, since the lacuna of merger comes into play. It is true that in Union of India and others Vs. West Coast Paper Mills Ltd. and another (5 supra), the Apex Court was referring to its powers under Article 136 of the Constitution to admit an appeal by granting special leave. But, the crucial question that was determined by the Apex Court relates to the starting point of limitation when the appeal is pending before the appellate Court. Therefore, the Apex Court clearly laid down in the said decision that even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the court of appeal. 19. Turning to the facts of the case on hand, it is the revision petitioner/judgment debtor who preferred an appeal against decree passed by the trial Court. In the appeal, the appellate Court rejected the contention of the judgment debtor in toto and confirmed the decree passed by the trial Court. Furthermore, raising structures by the revision petitioner in the scheduled mentioned property is after filing of the suit and when the same was pending trial. Therefore, it is a subsequent event, which was taken notice of by the trial Court as well as the appellate Court. The ultimate decision rendered therefore, is in the nature of moulding the relief considering the subsequent events. The trial Court specifically held that the relief is in the nature of maintaining status-quo as on the date of filing of the suit and therefore, the revision petitioner is directed to remove the structures and restore the possession to the respondent. The ultimate decision rendered therefore, is in the nature of moulding the relief considering the subsequent events. The trial Court specifically held that the relief is in the nature of maintaining status-quo as on the date of filing of the suit and therefore, the revision petitioner is directed to remove the structures and restore the possession to the respondent. In the case of Union of India and others Vs. West Coast Paper Mills Ltd. and another (5 supra) the Apex Court referring to Section 3 of the Limitation Act, 1963 held that the said provision is required to be construed in a broad and liberal manner. Further while passing the judgment in the appeal, the appellate Court granted one-month time to the revision petitioner to remove the constructions illegally made and hand over the vacant site to the respondent and failing which as per the decree of the appellate Court, the respondent can get the constructions removed and take delivery of the vacant site through process of the Court. Thus, at the instance of the revision petitioner only the issue was pending consideration before the appellate Court and ultimately it was decided against him. The decree passed by the appellate Court in view of the settled legal position annunciated by the Apex Court results in the merger of the decree passed by the trial Court, it has to be held that the limitation only commences after the one month time granted to the revision petitioner by the appellate Court to comply with the directions issued in the appeal. The learned executing Court therefore, rightly held that the execution petition filed by the respondent/decree holder is within the period of limitation. 20. For the foregoing reasons, the order passed by the Principal Junior Civil Judge, Warangal on 19.06.2006 in E.P.No.820 of 2003 in O.S.No.906 of 1989 is confirmed. The civil revision petition is dismissed with costs.