JUDGMENT Hon’ble Prakash Krishna, J.—The only question mooted in the present writ petition is whether the limitation for counting the period of twelve years prescribed for execution of decree for possession would start running from the date of judgment of the trial Court or from the date of the dismissal of revision when the revision was dismissed for want of prosecution. 2. Shorn of unnecessary details, the facts which are no longer in dispute and relevant for the present purposes may be noted in brief. The original suit No. 49 of 1979 was instituted by Mukut Bihari Lal (predecessor in interest of the respondent Nos. 1 to 4 herein) against Shri Mahaveer Prasad Jain (predecessor in interest of the petitioners) and Shri Raj Bahadur Jain for recovery of arrears of rent, damages and ejectment on the allegations that the defendants were the tenant. The suit was decreed on 23.2.1980. The decree was signed on 27.2.1981. The matter was carried by the defendant in revision being revision No. 98 of 1981 which was ultimately dismissed for want of prosecution on 15th of October, 1982 and the formal order was signed on 26th November, 1982. The decree was put to execution being Execution Application No. 54 of 1994 on 11th October, 1994. The petitioners herein who are the heirs of judgment debtor preferred objection under Section 47 of CPC on the allegations that the Execution Application is barred by time as it was filed beyond period of twelve years reckoned from the date of judgment of trial Court. The said plea was not found favour with the Executing Court who on 5th January, 2005 held that the period of limitation would start running from 15th October, 1982 when the revision was dismissed in default and from that period the Execution Application is within twelve years. The said view has been affirmed in SCC Revision No. 5 of 2005 by the Court below by its judgment and decree dated 13.12.2010. 3. The learned counsel for the petitioners submitted that ordinarily the doctrine of merger applies when the judgment of lower Court is carried to higher Court and decision is given by the higher Court on merits. The judgment of the lower Court merges with the judgment of the higher Court. 3. The learned counsel for the petitioners submitted that ordinarily the doctrine of merger applies when the judgment of lower Court is carried to higher Court and decision is given by the higher Court on merits. The judgment of the lower Court merges with the judgment of the higher Court. According to him if the appeal or revision is not decided by higher Court as the case herein and it is dismissed otherwise on merits i.e. for want of prosecution, on the question of limitation, Court fees etc., the judgment of the lower Court does not merge with that of the Appellate Court/higher Court. 4. In support of the contention he has placed reliance on certain decisions which will be considered at the appropriate stage. 5. In contra, the learned counsel for the respondent decree holder, on the other hand, submits that the controversy on hand stands set at rest by the authoritative pronouncement of the Apex Court in the case of Shyam Sunder Sarma v. Panna Lal Jaiswal, 2005(1) SCC 436 . 6. Considered the respective submissions of the learned counsel for the parties and perused the record. 7. The main argument of the learned counsel for the petitioners is that the revision was not decided on merits and it was dismissed for want of prosecution and therefore, the judgment of the trial Court would not merge in the judgment of the revisional Court. In support of the above, he also submitted that such an order passed by the revisional Court is not a decree. In support thereof strong reliance was placed by him on Firdous Omer (Dead) by Lrs. and others v. Bankim Chandra Daw (Dead) by Lrs. and others, (2006) 6 SCC 569 , para 12 in particular, which is reproduced below : “12. After all, a dismissal of the suit for non-prosecution or for non-appearance of the plaintiff is not a decree as specified by Section 2(2) of the Code itself. Hence it is not appealable as a decree. Of course, the Calcutta High Court seems to have taken the view that the order of dismissal would amount to a judgment and hence appealable under clause 15 of the Letters Patent. Hence it is not appealable as a decree. Of course, the Calcutta High Court seems to have taken the view that the order of dismissal would amount to a judgment and hence appealable under clause 15 of the Letters Patent. We do not think it necessary to decide for the purpose of this case, whether dismissal of a suit for default on the part of the plaintiff would amount to a judgment within the meaning of clause 15 of the Letters Patent. We leave that question open for the present.” 8. The above quoted paragraph does not advance the case of the petitioners. The observations made therein are with reference to a different factual matrix. There the suit was dismissed for non-prosecution and in that connection the aforestated observations were made. The Court was not concerned with the point presently involved in the present writ petition. There is no discussion in the entire judgment on the point as to when the prescribed period of twelve years would start running for the purpose of execution of the decree. The decision relied upon is, therefore, distinguishable on facts, being besides the point. 9. Then, reliance was placed on the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, (1982) 2 SCC 596 (para 20 in particular). The said decision is also distinguishable on facts as the Court was considering the Explanation to Order IX Rule 13 CPC. Entirely a different controversy was under consideration therein and the said decision does not address the point involved herein. 10. In W.B. Essential Commodities Supply Corporation v. Swadeshi Agro Farming & Storage Pvt. Ltd. and another, (1998) 8 SCC 315 , it was held that the period of limitation under Section 136 of the Limitation of Act runs from the date of decree and not when the decree is actually drawn up and signed by the Judge. In the said case the decree was money decree and it was held that the decree holder never enforced the money decree immediately on the pronouncements of the judgment by making an oral application under Sub Rule (1) of Rule 11 of Order XXI CPC. Under the scheme of the limitation, the execution applications like plaint have to be presented in the Court within the time prescribed by the Limitation Act. Under the scheme of the limitation, the execution applications like plaint have to be presented in the Court within the time prescribed by the Limitation Act. A decree holder does not have benefit of exclusion of the time taken for obtaining the certified copy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the Court in drawing up and signing the decree. Section 5 of the Limitation Act has no application; Section 12(2) of the Limitation Act is also inapplicable to an execution petition. If the time is reckoned not from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order 20 and Order 21 Rule 11 CPC which is clearly impermissible. The said decision does not address the question of merger and therefore is distinguishable on facts. 11. Lastly reliance was placed on Chandi Prasad and others v. Jagdish Prasad and others, (2004) 8 SCC 724 (Para-12 in particular). The said paragraph is reproduced below : 12. “In the old Limitation Act, not only the date of disposal of the appeal or the withdrawal thereof, but the date of the review of the judgment, the date when the decree which has been amended or other factors specified therein were also considered to be the starting period of limitation. The period provided for execution of a decree under the Act is a statutory one.” 12. Elaborating the argument, it was submitted that this decision has been referred in the case of Shyam Sunder Sarma v. Panna Lal Jaiswal, (2005) 1 SCC 436 , a decision which has been heavily relied upon by the decree holder. In this very case in paragraphs 23 to 28 the doctrine of merger has been explained. In para 28 it has been said that when an appeal is dismissed on the ground that the delay in filing the same is not condoned, the doctrine of merger shall not apply. The relevant paragraphs are reproduced below : 23. “The doctrine of merger is based on the principles of propriety in the hierarchy of the 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 relevant paragraphs are reproduced below : 23. “The doctrine of merger is based on the principles of propriety in the hierarchy of the 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 be 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 reverses the decree passed by the trial Court. When a special leave petition is dismissed, it does. [See V.M. Salgaocar and Bros. (P) Ltd. v. CTT, (2000) 5 SCC 373 : 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 Kunhaayammed v. State of Kerala, (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: (SCC p. 383, paras 41-43) “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 appealed against. It would also not make any difference if the order is a speaking or non-speaking one. 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 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. Nevertheless, 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 identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68.) 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 can 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.” 26. In Kunhayammed it was observed: (SCC p. 370, para 12) “12. ... 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.” 26. In Kunhayammed it was observed: (SCC p. 370, para 12) “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. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.” 27. The said decision has been followed by this Court in a large number of decisions including Union of India v. West Coast Paper Mills Ltd., (2004) 2 SCC 747 ]. 28. However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. [See Raja Mechanical Co. (P) Ltd. v. CCE, ILR (2002) 1 Del 33.]” 13. The aforesaid decision should be read and understood in the light of facts involved therein. It may be noted that the matter was referred to larger Bench to consider the earlier judgment delivered in the case of Ratan Singh v. Vijai Singh, (2001) 1 SCC 469 . It was held that Ratan Singh’s case has no application to the facts of the present case. 14. The learned counsel for the parties failed to draw attention of the Apex Court to its earlier judgment given in the case of Shyam Sunder Sarma v. Panna Lal Jaiswal (supra) wherein the decision given in the Ratan Singh’s case was not approved but has been overruled. It has been held that an order passed in appeal dismissing it as barred by time is an order in appeal. It has relied upon on its earlier decision in Mela Ram and sons v. CIT, AIR 1956 SC 367 , wherein it has been held that an appeal presented beyond time is an appeal and an order dismissing it as time barred is one passed in an appeal. It has relied upon on its earlier decision in Mela Ram and sons v. CIT, AIR 1956 SC 367 , wherein it has been held that an appeal presented beyond time is an appeal and an order dismissing it as time barred is one passed in an appeal. It has also relied upon Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 , rendered by Four Hon’ble Judges of the Apex Court wherein one of the questions was whether dismissal of an appeal from the decree on the ground that appeal was barred by limitation was a decision in appeal or not. The following observation therefrom has been reproduced in paragraph 9.1 : “We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.” 15. In my considered view the aforesaid observations are fully applicable to the facts of the present case where the revision was dismissed for want of prosecution. It amounts to confirmation of decision of the trial Court on merits. It amounts as if the appeal was heard and finally decided on merits whatever may be the ground for dismissal of the appeal. 16. The controversy in hand is squarely covered by the aforesaid decision in the case of Shyam Sunder Sarma given by the Apex Court. 17. Any other point was not pressed. There is no merit in the writ petition. 18. The writ petition is, therefore, dismissed. But no order as to costs. ——————