JUDGMENT Hon’ble Servesh Kumar Gupta, J. Having heard the learned Senior Counsel for both the parties, what this Court feels is that the revision has been preferred mainly for two reasons; the first is that the Award dated 15.2.1988 was never made the Rule of the Court, much less the decree, so it was not executable; the second is that in any case, the Execution Case No.4 of 2009, launched by the opposite party M/s Goyal Traders & Contractors, was barred by limitation making the order dated 04.05.1990 not executable. 2. This Court has rendered the extensive hearing to learned counsel for both the parties. 3. Brief facts, sans unnecessary details, are that there was an Arbitration Agreement dated 17.8.1981 entered into between the parties. The work was completed by the Contractor on 30.9.1984, but somehow, the dispute arose regarding the assessment of the work and payment thereto. So, as per the terms of agreement, the Arbitrator was appointed, who rendered the Award on dated 15.2.1988 to the tune of Rs.6.90 lakh plus to be payable by the ONGC to the Contractor. Before such award could be made the Rule of the Court, much less filing of the same in the Court itself, ONGC paid the amount of Rs.6.68 lakh plus deducting the amount of income tax as was entailed in the Award itself and that payment was received by M/s Goyal Traders. After receiving such amount, M/s Goyal Traders could notice that the Claim no.6 of the Award, though was allowed in full, but it was somewhat, by clerical mistake, written as Rs.864.42 by the Arbitrator while the claim was for Rs.20,864.42. So, the respondent-M/s Goyal Traders moved an application in the Trial Court which later on was got registered as O.S. No.133 of 1988, wherein the following prayers were made by M/s Goyal Traders: - A. “That the arbitrator-opposite party no.2 be directed to file in Court the award or a signed copy thereof with full record of arbitration proceedings and all documents filed and framed by the parties to the arbitration. B. Further proceedings be taken according to law and judgment be pronounced according to the Award and the Award be made Rule of the Court. C. Pendente lite and future interest on the amount awarded to the applicant at the prevailing market rate of 18% p.a. be also awarded to the applicant till date of realization. B. Further proceedings be taken according to law and judgment be pronounced according to the Award and the Award be made Rule of the Court. C. Pendente lite and future interest on the amount awarded to the applicant at the prevailing market rate of 18% p.a. be also awarded to the applicant till date of realization. D. Full costs of this case be awarded to the applicant. E. Any other and further orders which the learned Court deems fit.” 4. This application was vehemently resisted by the ONGC but the same was allowed on 04.05.1990 with the directions that in Claim No.6 of such Award, Rs.864.42 should be considered to be modified to the tune of Rs.26,864.42 (mistakenly for Rs.20,864.42). 5. Revisionist-ONGC filed an appeal against such order dated 04.05.1990 before the Allahabad High Court, which, with the passage of time, was transferred to Uttarakhand High Court, and on 12.8.2004, when such appeal came up for hearing before the Division Bench of this Court, learned counsel for the O.N.G.C. made the statement (so recorded by the Court) that the appeal had been rendered infructuous, so, the same was dismissed as such. 6. After dismissal of such appeal, the order dated 04.05.1990 became final. So, M/s Goyal Traders filed the Execution Case No.4 of 2009 in the Trial Court on 1.7.2009. Revisionist –ONGC filed objections u/s 47 of the Code of Civil Procedure but the same were rejected by the Additional Civil Judge (Senior Division), Dehradun by way of passing the order dated 10.2.2012, which is under challenge in this revision. 7. The argument of learned Senior Counsel for the revisionist-ONGC that the Award was not executable since it was never made the Rule of the Court much less a decree, is not acceptable to this Court for the reason that there was no question of making the whole Award dated 15.2.1988 as the Rule of the Court because the payment had already been made by the ONGC to M/s Goyal Traders even before such Award could be filed in the Court. 8. As regards the Claim no.6 which was the part of that Award, the application was moved by M/s Goyal Traders at a later point of time which was resisted by ONGC with tooth and nail. 8. As regards the Claim no.6 which was the part of that Award, the application was moved by M/s Goyal Traders at a later point of time which was resisted by ONGC with tooth and nail. So, this legal fight between the parties can well be taken in the spirit of resisting the Award as envisaged under Section 17 of the old Arbitration Act. Simply, by missing of phrase ‘Rule of the Court’ or the word ‘decree’ can never be understood in the sense that the matter was not heard on a particular point/clause by the Court below as has been contemplated under Section 17 of the old Arbitration Act, irrespective of the wordings of the prayer, as made in the application 11C2 (O.S. No.133/1988) moved by M/s Goyal Traders. 9. As regards the limitation bar, this Court feels that the law laid down by the Bombay and Rajasthan High Courts in the following two precedents is quite identical with the present controversy: - A. “Ramkrishna Bajirao Gotmare v. Kanhaiyalal Tribhuwanlal Shah, AIR 1990 Bombay 361. B. Sayed Abdul Rauf v. Nurul Hussain and others, AIR 1992 Rajasthan 3.” 10. Before the Bombay High Court, the same question was there that: - ‘What is the starting point of limitation to file an application under Art. 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’. Contention is that the new Act has brought about a change in the legal position by which time begins to run from the date of passing of the original decree, since it is enforceable from that very date. 11. Similarly, the Rajasthan High Court (Jaipur Bench) in the case of Sayed Abdul Rauf (Supra) has held that: - “8. It is true that there was no stay order in the second appeal but the question still arises as to whether the date of dismissal of the second appeal in default could be taken into consideration for holding that the execution application was within time. To support his submission, the learned Counsel for the Petitioner referred to the decisions of the Privy Council reported in Harendra Lal v .Sm. To support his submission, the learned Counsel for the Petitioner referred to the decisions of the Privy Council reported in Harendra Lal v .Sm. Haridasi Debi and others ‘ AIR 1914 PC 66 ’ and Jagannath Bal v. Sadhu Charan Bal AIR 1943 Pat 371. None of the two cases has any relevance to the controversy for decision before me. Dismissal of a suit or an appeal in default is also a judicial order irrespective of the fact that there was no stay order in the second appeal. The decree-holders could wait for its decision and the application could not be said to be barred by time. By Article 136 of the Limitation Act, period provided for execution of a decree is twelve years from the date on which it becomes enforceable. It was immaterial that there was no order staying the execution of the decree and that the decree-holders could execute the decree even at that time. If the appeal had been preferred, the decree could become enforceable after dismissal of the same.” 12. On the other hand, learned Senior Counsel for the revisionist has placed reliance upon the precedent of Hon’ble Apex Court in the case of ‘Amba Bai and others v. Gopal and others’ [2002 (48) ALR 351), wherein the doctrine of merger has been explained. But that was a case where the Special Leave Petition was dismissed by a non-speaking order. Then, in such eventuality, it was clarified that an order dismissing such petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court. Thus, the doctrine of merger was not applicable in such events. 13. Therefore, the precedent of Hon’ble Apex Court, as relied upon by learned Senior Counsel for the revisionist, is in quite different context and this Court feels that the precedents of Rajasthan and Bombay High Courts (Supra) are more relevant to the present controversy. 14. This Court also finds that although the decree holder was at liberty to execute the order of the Court dated 4.5.1990, which was not less than a decree (because both the parties had been heard on merits after hot contest), but he did not file the execution application because such order had been challenged by way of filing the Appeal No.811 of 1990 before the Allahabad High Court. It does not matter whether the appeal before the High Court was decided on merits or it was dismissed in default or being infructuous, as submitted by the learned Counsel for the judgment debtor himself. If the judgment debtor files an appeal and keeps it pending before the Appellate Court, even for hearing on the question of admission and after the lapse of time limitation of twelve years, gets it dismissed by making the submissions, as made in this case, then such a plan, on the part of the judgment debtor, cannot abridge the right of the decree holder to execute his decree after dismissal of such appeal, albeit not on merits but being infructuous or in non-prosecution. Otherwise, the mischievous judgment-debtor can deprive the decree-holder from taking the fruits of his decree by way of such planning. This Court holds that if the judgment debtor prefers an appeal and if the same is not even admitted for hearing or it is not decided on merits, then the decree holder is at liberty to execute his decree if there is no stay granted by the Appellate Court. If he chooses not to execute the decree and waits till the appeal is adjudicated, either on merits or otherwise, then such wait will not debar him from executing his decree and the period of limitation will be reckoned from the date when the appeal is decided on merits or otherwise by the superior Court. 15. Thus, in view of what has been stated above, this revision is bereft of any merit and is, accordingly, dismissed.