Judgment This writ petition is directed against the order dated 29.5.2008 passed in Execution Petition No.113/1993 on the file of the Prl. Civil Judge (Sr.Dn.), Kundapur. 2. The petitioner is the plaintiff. He had filed a suit for permanent and mandatory injunction restraining the defendants and their men from obstructing or blocking the pathway of 5 feet width running South to North and lying in the easternmost portion or on any portion and alternatively, if the Court finds that the pathway in question has been closed by the defendants then for a mandatory injunction directing the defendants or such of them to open the pathway on the ‘B’ schedule property so as to enable the plaintiff to reach the ‘A’ schedule property within a time to be fixed by the Court and on failure of the defendants to do so giving liberty to the plaintiff to get it done through process of the Court by executing the decree at the costs of the defendants. 3. The said suit was decreed by the learned Civil Judge, by a judgment and decree Dated 31.10.1986. The operative portion of the judgment reads as under: “The defendant No.2 shall leave a portion of his property on the eastern most portion running north to south measuring 2 feet and the 1st defendant shall have a portion of his property on the westernmost portion running north to south measuring 2 feet so as to enable the plaintiff and her men to reach the plaint ‘A’ schedule plot from the southern roan and vice-versa. The defendants 1 and 2 and their people are permanently restrained from obstructing or blocking the aforesaid path way of 4 feet width running south to north and from interfering with the plaintiff’ right of way over the same to reach the suit ‘A’ schedule property in any other manner. The defendants 1 and 2 shall leave the aforesaid 4 feet path way jointly for the use of the plaintiff and her men on or before 30.11.1986, and on the failure of the defendants to do so, liberty is given to the plaintiff to get it done through process of this Court by executing the decree at the costs of the defendants.” 4. However, the plaintiff filed R.A.No.1/1987 being aggrieved by the judgment and decree of the trial Court. However, the plaintiff filed R.A.No.1/1987 being aggrieved by the judgment and decree of the trial Court. The said R.A was disposed of by the judgment and decree dated 12.2.1993/ The operative portion of the judgment reads as under: “The appeal filed by the plaintiff-appellant is hereby allowed. Order passed by the learned Munsiff about cost is hereby set aside and it is ordered that the plaintiff-appellant is entitled for cost throughout from the defendants including this appeal and the defendants have to bear their own. Ordered accordingly.” 5. After the disposal of the appeal, decree holder filed two execution petitions. Execution Petition No.114/1993 was filed for recovery of costs and Execution Petition No.113/1993 was filed for execution of the decree of mandatory injunction. In so far as Execution Petition No.113/1993 is concerned, the judgment-debtor filed objections inter alia alleging that the Execution Petition is barred by time, in view of the limitations prescribed under Article 135 of the Limitation Act, as it is filed beyond three years from the date of decree. In this regard, the judgment-debtor relied on the judgment and decree of the trial Court dated 31.10.1986. 6. The Court below considered the issue, found that there is a merger of the trial Court decree in the appellate Court decree and as such the decree of the appellate Court become executable and the Execution petition is within time. Being aggrieved by the said order, the judgment-debtor filed a Civil Revision Petition No.3026/2001 and this Court by an order dated 4.7.2003 considering the judgment of the Apex Court found that the matter requires reconsideration and accordingly, it set aside the order of the Executing Court wherein, the Executing Court had held that there is a merger of the judgment of the trial Court in the appellate Court and remitted the matter for reconsideration. 7. After remand, the Executing Court has now held that there is no merger of the trial Court decree in the appellate Court as the appeal was filed only as regards to the cost and not against the entire decree and as such, the decree of mandatory injunction could have been executed within three years from 31.10.1986 and held that the Execution petition is barred by time under Article 135 of the Limitation Act. It is against the said order, this petition has been filed. 8. It is against the said order, this petition has been filed. 8. Sri Vigneshwar S.Shastri, learned Counsel for the petitioner submitted that undisputedly against the judgment and decree of the trial Court, an appeal was filed and the appellate Court modified the judgment and decree of the trial Court by its judgment dated 12.2.1993 and Execution Petition was filed on 31.3.1993 well within three years from the date of the appellate Court decree. In view of the statutory appeal provided against the decree of the trial Court and the appellate Court modifying, reversing or confirming the decree of the trial Court, this decree is executable as the trial Court decree gets merged in the appellate Court judgment and decree. 9. On the other hand, Sri A.Ananda Shetty, learned Counsel for judgment-debtor submitted that, admittedly, the decree was for mandatory injunction. The appellate Court has only modified the cost factor only and in so far as the cost factor is concerned, separate execution petition was filed in Ex. Petition No.114/1993 and it was executed. As such, the Ex. Petition No.113/1993 which was filed against the mandatory injunction admittedly being beyond limitation period prescribed under Article 135 of the Act from the date of judgment and decree of the trial Court is barred by time and rightly rejected by the Executing Court./ 10. In this regard, he relied on the judgment of the Apex Court in 2004 SAR (Civil) 913 in the matter of Chandi Prasad and Others Vs. Jagdish Prasad and Others and submitted unless the decree of the trial Court merges with the judgment and decree of appellate Court, trial Court decree is available for execution. The Executing Court having found that the mandatory injunction granted by the trial Court neither modified nor set aside nor had entertained the appeal, it has to be construed as no appeal filed against the said judgment and decree and it was available for execution from the date of judgment and decree of the trial Court. 11. He also relied on the judgment of the Allahabad High Court reported in AIR 1986 Allahabad 1 in the matter of Sarwan Lal and another Vs. 11. He also relied on the judgment of the Allahabad High Court reported in AIR 1986 Allahabad 1 in the matter of Sarwan Lal and another Vs. Kanti Prasad and submitted that in a suit, if two decree are passed one for mandatory injunction of removal of the fuel wood stacked on the roadside and another for permanent injunction or prohibitory injunction being both separately executable, the limitation as provided under Section 135 is applicable to the mandatory injunction whereas, for the prohibitory injunction limitation of 12 years is applicable. They are separable and also they can be executed separately. On this same line, he relies on another judgment of the Allahabad High Court reported in AIR 1986 Allahabad 9 in the matter of Harihar Pandey Vs. Mangala Prasad Singh and others. 12. The short question that arises for consideration in this appeal is whether the trial Court judgment and decree gets merged in the appellate Court judgment, if the appellate Court only modifies portion of the decree without considering the other par of the decree or modifying or touching the other part of the decree. 13. It is not in dispute that the plaintiff being aggrieved by the judgment and decree of the trial Court had filed appeal against the said judgment and decree, The preamble of the appellate Court judgment reveals that the appeal is filed against the judgment and decree passed by the trial Court in O.S.No.202/1980. However, the operative portion as extracted above shows that, only to the extent of costs, the judgment and decree of the trial Court was modified. In the light of this, the contention is raised by the learned Counsel for the respondent that the operative portion of decree of mandatory injunction, should have been executed within three years from the date of judgment of the trial Court. 14. The Apex Court, in a judgment reported in 2004 SAR (Civil) 913, considering the question of pendency of the SLP under Article 136 and dismissal at the stage of the new petition has considered as to whether it amounts to merger or not and at paragraphs 23, 24 and 25 of the said judgment. It observed thus: “23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. It observed thus: “23. The doctrine of merger is based on the principles of propriety in the hierarchy of 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. 24. It is trite that when an Appellate Court passes a decree, the decree of the trial Court merges with the decree of the Appellate Court and even if and subject to any modification that may made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reversed the decree passed by the trial Court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. [See V.M.Salgaocar and Bros. Pvt Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623 ]. 25. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and Others Vs. State of Kerala and Another [ (2000) 6 SCC 359 ] wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply stating: “41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevetheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identify and individuality. 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court cannot be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.” In Kunhayammed (supra), it was observed: “12. …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. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the contend or subject-matter of challenge laid or which could have been laid shall have to be kept in view.” 15. From the judgment of the Apex Court, it is clear that when the appellate Court passed a decree, of the trial Court merges with the decree of the Trial Court. Even if on subject to modification that may be made in the appellate Court even if the appellate Court modifies, confirm or reversed. The decree of the trial Court gets merged in the appellate court decree. 16. In a judgment reported in 2000(6) SCC 359 in the matter of kunhayammed and others Vs. State of Kerala and others, similar issue came before the Apex Court as to the merger in case of filing of an SLP and the Apex Court considering the earlier judgment observed as under: “The doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein,. Whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle or logic flowing from the above said decisions can usefully be utilized for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. The principle or logic flowing from the above said decisions can usefully be utilized for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardized as the pendency of appeal reopens the issues decided and this Court is then scrutinizing the correctness of the decision in exercise of its appellate jurisdiction.” At paragraph 42 of the said judgment, it is observed as under: “To merge” means to sink or disappear in something else; t become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identify and individuality.” It is observed that mere filing of SLP or rejection at the stage of SLP does not amount to merger. However if the SLP is granted and the appeal is decided, the decree will get merged in the supreme decree. 17. The Apex Court in another judgment reported in 2004(2) SCC 747 in the matter of Union of India and others Vs. West Coast Paper Mills Ltd., and another, while considering the limitation for filing a suit had considered the case where the appellate Court though granted SLP however had granted only the limited interim order and thereafter the disposal of the appeal by the Apex Court, the party filed a writ petition. Thereafter, he filed a suit for the refund of excess amount. 18. At that stage, the objections were raised as regards to the maintainability of the suit as hit by the provisions of Article 58 of the Limitation Act as suit is not filed within three years. The appellate Court, on appreciation of the contentions raised found that, though interim order was not granted when the SLP was granted and appeal was disposed of. The appellate Court, on appreciation of the contentions raised found that, though interim order was not granted when the SLP was granted and appeal was disposed of. The fact remains that SLP was granted and appeal was entertained whether it is confirmed or reversed, an appeal having been entertained by the Apex Court, the decree passed by the Court below gets merged in the appeal of the Supreme Court. Even though the interim order was not granted and Section 14 of the Limitation Act is applicable as the plaintiff had pursued his remedy by filing a writ petition and held that the suit is well within time. The Apex Court has considered another judgment on interpretation of Articles 113 and 58 of the Limitation Act in AIR 1990 SC 10 in the matter of S.S.Rathore Vs. State of Madhya Prasdesh, wherein the Apex Court had considered the merger theory in the case of Court as well as in the case of the tribunal. At para 22, it is observed that: “it is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed for representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter fixing limitation.” In para 25, the Apex Court held that: “since the claim has been dismissed on the plea of limitation and our conclusion is that the suit was within time the judgments of the trial Court, the First Appellate Court and the High Court are set aside and the matter is remitted to the trial Court for disposal in accordance with law.” 19. In the said judgment, the appeal which was filed by the authority was pending and on considering the pendency of the appeal thereafter dismissal, the suit was filed. The contention raised by the respondent therein that the suit is barred by time was negatived by the Apex Court by interpreting that till the appeal or revision legally given is disposed of, limitation shall not commence. 20. The contention raised by the respondent therein that the suit is barred by time was negatived by the Apex Court by interpreting that till the appeal or revision legally given is disposed of, limitation shall not commence. 20. A reading of judgment makes it clear that if there is statutory appeal provided and the appeal is pending, until and unless the appellate Court modifies or reverse or confirms the judgment, it cannot be held that limitation starts running from the date of judgment of the trial Court. No doubt in this case, the petitioner might have filed the execution petition as regards to the costs. But the said application is also filed after the disposal of the appeal. If the judgment and decree of the appellate Court is taken into consideration, the execution petition is well within time under Article 135 of the Limitation Act. In so far as the merger is concerned, admittedly the appeal is a right given to the aggrieved party to question the judgment and decree. Whether the appellate Court reversed or confirmed the judgment and decree, has no effect as far as limitation is concerned. Limitation commences only from the date of the judgment and decree of the appellate Court if any appeal is filed and admittedly in this case, appeal was filed. Whether it is for the purpose of cost or not, decree got modified by the appellate Court. 21. In these circumstances, in my opinion, the limitation commence after the judgment and decree of the appellate Court and not after the judgment of the trial Court. Accordingly, petition is allowed. The order of the Executing Court is reversed. The Executing Court is directed to execute the decree in accordance with law. Even otherwise also, the prohibitory injunction granted is subject to mandatory injunction and in view of the same, if the decree is also interpreted otherwise, it gives limitation of 12 years. Considering this aspect also, I am of the opinion that the order of the executing Court is not sustainable . 22. Accordingly Writ Petition allowed. The order of the Court bellow is set aside. Matter is remitted to the executing Court to proceed with, in accordance with law.