JUDGMENT : 1. By the present Revision Application filed under section 115 of the Code of Civil Procedure, 1908 (“the Code”), the petitioners have challenged the order dated 4.2.2015 passed by the learned Third Additional Senior Civil Judge, Anand below application Exh.22 whereby the learned Judge has rejected the said application. 2. The application Exh.22 was preferred seeking rejection of the execution petition filed by respondent No.1-original plaintiff on the ground that the decree was passed in the suit on 31.7.1982 for eastern part of the land bearing Survey No. 1059 of village Bakrol and for execution of such decree, the execution petition was preferred on 31.3.2011 which was beyond the time limit prescribed for filing the execution petition. 3. The learned Judge has not accepted the application Exh.22 mainly on the ground that the decree partly in favour of decree holder attained finality after the Civil Appeal No.162 of 1982 and Second Appeal No. 172 of 1996 preferred by the decree holder were dismissed on 21st June, 1996 and on 28th February, 2013 respectively. The learned Judge has held that limitation to file execution petition would start from the date when the judgment and decree was confirmed in the appeal by the High Court. 4. Learned Advocate Mr. Mehul Shah appearing with learned Advocate Mr. Hardik Brahmbhatt for the petitioners submitted that against the partial decree passed by the trial court, there was no challenge made by any of the defendants including the petitioners and, therefore, the decree was enforceable from the date when it was passed by the trial court within the time limit of 12 years from the date of the decree, however, undisputably, the execution petition was filed after a period of more than 28 years. Mr. Shah submitted that since the civil appeal before the first appellate court as also the second appeal before this Court were preferred by the respondent No.1 – plaintiff against the part of the claim not allowed, the plaintiffs were never prevented from enforcing the decree for part claim passed in their favour. Mr. Mr. Shah submitted that since the civil appeal before the first appellate court as also the second appeal before this Court were preferred by the respondent No.1 – plaintiff against the part of the claim not allowed, the plaintiffs were never prevented from enforcing the decree for part claim passed in their favour. Mr. Shah submitted that if the decree for part claim was not under challenge and when there was no stay of the proceedings under the decree by the higher forum, limitation for filing the execution petition to enforce the decree would start from the date of such decree and pendency of appeals for rest of the claim in the suit would not save the limitation for filing the execution petition. Mr. Shah has referred to Order 41, Rule 5 of the Code and submitted that the legislature clearly intended that in absence of any stay in appeal, decree granted for part claim becomes enforceable. Referring Section 15 of the Limitation Act, 1963 (“the Act”), Mr. Shah submitted that the period during which the enforcement or execution of decree is stayed by injunction or order is to be excluded for the purpose of limitation for filing the execution petition, but in absence of any exclusion of the period on account of any stay, limitation period would be reckoned from the date of the decree. Mr. Shah submitted that mere pendency of the appeal that too not against the decree in favour of the plaintiff without any interim stay if to be considered for the purpose of exclusion of time limit for filing the execution petition, the provisions of Order 41, Rule 5 of the Code as well as section 15 of the Act will be redundant. Mr. Shah submitted that in view of the change brought in for limitation for filing of the execution petition by Article 136 of the Act since full 12 years are available for filing the execution petition, the factum of mere pendency of appeal before the higher forum in absence of any stay against the decree is not to be considered for the purpose of counting time limit for filing the execution petition. Mr. Mr. Shah submitted that the definition of decree uses the phrase “all or any of the matters in controversy” and when the controversy as to the rights of the parties as regards subject matter in dispute was put to rest by the decree and when such decree was not challenged, the dismissal of the first appeal and confirmation thereof by the High Court in the Second Appeal would not supersede the decree of the trial court and, therefore, decree was enforceable from the date it was passed by the trial court. Mr. Shah would thus submit that the Court below has seriously erred in holding that the limitation to file the execution petition would start from the date when the final judgment was rendered by this court in second appeal. In support of his arguments, learned Advocate Mr. Shah has relied on the following judgments: (1) AIR 2008 SC 429 in the case of Manohar Shankar Nale & Ors. v. Jaipalsing Shivlalsing Rajput & Ors. (2) AIR 1964 SC 227 in the case of A.S.K. Krishnappa Chettiar v. V.V. Somiah. (3) AIR 2001 SC 279 in the case of Ratansingh v. Vijaysingh and others. 5. As against the above arguments, learned Advocate Mr. H.M. Parikh appearing for the respondent No. 1 submitted that since the trial court did not allow the full claim of the plaintiffs in the suit, the plaintiffs preferred appeal before the first appellate court and then further appeal (second appeal) under section 100 of the Code before this Court, and till appeals were pending before the higher forums, it could be said that the rights of the parties were not finally adjudicated in the suit and the decree passed by the court below attained its finality only on the conclusion of the proceedings in the appeals by the higher forums. Mr. Parikh submitted that when the appeals were pending, the enforceability of the decree for part claim could be awaited until it was known to the plaintiffs that the plaintiffs got only part of the decree finalized in appeals. Mr. Mr. Parikh submitted that when the appeals were pending, the enforceability of the decree for part claim could be awaited until it was known to the plaintiffs that the plaintiffs got only part of the decree finalized in appeals. Mr. Parikh submitted that as per the definition of the decree, when the matters in controversy for entire subject matter in the suit are decided finally, same would become enforceable and such final adjudication in the present case was reached by the judgment in the second appeal preferred by the plaintiff before this Court and from the date of decree in Second Appeal, decree of the trial Court became enforceable as the decree of the trial Court would merge with the decree passed in last appeal. Mr. Parikh submitted that provisions of Order 41, Rule 5 of the Code and of section 15 of the Act are not to be construed to deny the fruits of the decree to the plaintiff when refusal of part claim in the suit is subject matter of challenge in the appeals and pendency of appeals would be a good ground to wait for enforcing the decree granted for part claim. Mr. Parikh submitted that Order 41 Rule 22 and 31 when provide for additional power of the executing court to modify the decree or grant any further relief, and since the appeal is continuous proceedings of the suit, and when the appeal is preferred though not against the decree granted for part claim, it can be said that the decree passed by the trial court attain finality only by judgment and decree in the appeals and pendency of appeals would be a good ground not to go for enforcement of the decree for part claim as the decree of trial court would merge with the final decree of the last appellate Court. In support of his arguments, Mr. Parikh has relied on the following judgments: (1) AIR 1976 Calcutta 122 in the case of Shyama Pada Choudhury v. Saha Choudhury & Co. and others. (2) AIR 1970 AP 269 in the case of Mantrala Rajagopalam v. Vemuri Venkata Subba Rao. (3) AIR 1932 PC 161 in the case of Maung Sein Done v. Ma Pan Nyan and others. 6. and others. (2) AIR 1970 AP 269 in the case of Mantrala Rajagopalam v. Vemuri Venkata Subba Rao. (3) AIR 1932 PC 161 in the case of Maung Sein Done v. Ma Pan Nyan and others. 6. Having heard the learned advocates for the parties, it appears that respondent No.1, with his wife Hasinabibi, filed Regular Civil Suit No. 50 of 1977 seeking declaration that the defendants have no right or title in the land bearing Survey No. 1059 ad measuring A.6 G. 8 and for recovery of possession of the said land with mesne profit from the date of the suit. 7. Such suit was allowed in part with declaration that the defendants have no right in the eastern side of the land bearing survey No.1059 ad-measuring 3 Acres 22 gunthas and the plaintiffs were made entitled to recover possession of the said land after getting it measured by the Surveyor. The decree was accordingly granted for part of the claim in the suit in favour of the plaintiffs. 8. Since the plaintiffs were aggrieved in so far as the trial Court did not grant decree for the rest of land in question, they preferred Regular Civil Appeal No. 162 of 1982 before the first appellate court which came to be dismissed by the judgment and decree dated 21st June, 1996. The plaintiffs then unsuccessfully carried the matter in second appeal No.172 of 1996 before this Court which was dismissed on 28th February, 2013. 9. It is pointed out that the subsequent review application preferred in the second appeal was also dismissed. It needs to be mentioned that pending the second appeal, respondent No.1- original plaintiff No.1 filed execution petition No. 41 of 2011 seeking execution of the decree dated 31st July, 1982 passed in the suit. The copy of the execution petition is placed with the present application wherein the plaintiff has mentioned about the judgment rendered in the first appeal and also about the pendency of the second appeal before this Court. 10. The copy of the execution petition is placed with the present application wherein the plaintiff has mentioned about the judgment rendered in the first appeal and also about the pendency of the second appeal before this Court. 10. The question posed is as to whether, when the decree passed in favour of the plaintiffs for part of the claim was not the subject matter of challenge in the appeal before the higher forums, was it enforceable from the date of passing the decree by the trial Court or its enforceability could have waited until the controversy as to whether the plaintiff was entitled to full claim was decided in appeal. 11. Referring the definition of the decree, learned advocate Mr. Shah submitted that the phrase “all or any of the matters in controversy” would not mean that grant of decree for part of the claim in the suit is no final adjudication and determination of the rights of all parties with regard to matter in controversy. Mr. Parikh however submitted that accepting part of the claim in the suit is no final determination of controversy as regards the subject matter of the suit until the appeal, if filed against other part of the decree, is decided. 12. The definition of “decree” as per section 2(2) of the Code reads thus; “(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 [* * *] section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;” 13. The phrase “any of the matters in controversy in the suit” would take in its sweep the conclusive determination of the rights of the parties with regard to matters like status or character of a party, jurisdiction of court, limitation etc. The phrase “any of the matters in controversy in the suit” would take in its sweep the conclusive determination of the rights of the parties with regard to matters like status or character of a party, jurisdiction of court, limitation etc. including the subject matter of the suit with reference to which the relief is sought. Therefore, simply because the claim only for part of the property which is the subject matter of dispute is accepted by the court is no ground to say that the decree passed for such part claim is no decree and cannot be enforced. It is on final adjudication of the rights of the parties as regards matters in controversy, the Court can decide whether the claim in the suit is to be accepted in full or in part. Therefore, if no appeal is preferred in connection with the decree passed in the suit, the controversy for the subject matter of the suit shall stand finally determined/concluded on acceptance of even part claim. 14. However, even if the decree for part claim is on final determination of rights of the parties as regards the matters in controversy in the suit, such decree could await its enforceability if the plaintiff is in appeal to get his full claim accepted in the suit as the decree of the trial court would merge with the decree of the last appellate court even if the appeal is dismissed. 15. Mr. Shah however submitted that since there was no challenge to the decree passed in favour of the plaintiffs, the decree passed by the appellate court is independent to the decree passed by the trial court and, therefore, the decree passed by the trial court would not merge with the decree of the appellate court and, hence, the decree which is to be executed is the decree of the trial court and not of the appellate court. Whereas learned Advocate Mr. Whereas learned Advocate Mr. Parikh submitted that when the appeal is preferred, the decree of the trial court attains finality only on the conclusion of the proceedings of the appeals before the higher forums as the decree for part claim would at that stage merge with the decree of the appellate court and since the decree of the appellate court would supersede the decree of the trial court, the limitation for execution would begin from the date of the decree of the last appellate court. 16. Article 136 of the Act provides for limitation for executing the decree of the Court below. It reads thus; 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. 17. As per above Article, one of the events provided for starting point of limitation for execution of decree is when the decree becomes enforceable. For starting point of limitation for execution of decree in the present case, the Court finds that since the appeals were pending, the decree for part of the claim would become enforceable on its attaining finality and merger with the decree of the second appeal. However, in the case on hand, before this court decided the second appeal, the execution petition was already filed and the execution petition did not proceed till the final decision was rendered in the second appeal. 18. However, in the case on hand, before this court decided the second appeal, the execution petition was already filed and the execution petition did not proceed till the final decision was rendered in the second appeal. 18. The Court finds that the absence of challenge to the decree granting part of the claim in the suit and the absence of any stay order from the appellate court against the execution of such decree would not make the execution petition time barred when filed after 12 years from the date of the decree of the trial court as since after dismissal of the first appeal, the second appeal was pending, enforceability of the decree could justifiably wait till it reached to its finality on conclusion of the proceedings before the last appellate court. Order 41, Rule 5 of the Code and section 15 of the Act are for protection of plaintiffs for exclusion of the time for the purpose of limitation for filing the execution petition. However, such provisions could not be construed to mean that the decree for part of the claim must be enforced within the period of twelve years even though the appeals are filed before the higher forum in connection with the controversy involved in the suit. Article 182 in the old Limitation Act, reads as under: 182. For the execution of a decree or order of any Civil Court not provided for by article 183 or by section 48 of the Code of Civil Procedure, 1908 Three years; or, where a certified copy of the decree or order has been registered, six years. 1. The date of the decree or order, or 2. (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or 3. (where there has been a review of judgment) the date of the decision passed on the review, or 4. (where the decree has been amended) the date of amendment, or 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made) in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or 6. (where the decree has been amended) the date of amendment, or 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made) in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or 6. (in respect of any amount recovered by execution of the decree or order, which the decree holder has been directed to refund by a decree passed in a suit for such refund) the date of such last-mentioned decree or, in the case of an appeal therefrom, the date of the final decree of the appellate Court or of the withdrawal of the appeal), or 7. (where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. Explanation 1. - Where the decree or order has been passed severally in favour of more persons than one, distinguishing portions ofthe subject matter as payable or deliverable to each, the application mentioned in clause 5 of this article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of 68 them, or by his or their representatives, shall take effect in favour of them all. Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against all of them. Explanation II. “Proper Court” means the Court whose duty it is to execute the decree or order. 19. Mr. But where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against all of them. Explanation II. “Proper Court” means the Court whose duty it is to execute the decree or order. 19. Mr. Shah submitted that in old Act, three years time limit was provided to be counted from the date of final decree or the order of the appellate court or from the date of withdrawal of the appeal or if the review was filed, from the date of decision given on review application but in the new Act, such provision is given go bye and long period of 12 years from the date of decree is given for execution of decree and, therefore mere pendency of appeal would not be a ground for extension of time limit for filing of the execution petition. 20. In the case of A.S.K. Krishnappa Chettiar (supra), the Hon’ble Supreme Court considered the question as to deduction of time for execution of decree by applying the principles underlying section 15 of the Limitation Act in paragraph No.10 to 13 as under: “10. Mr. Viswanatha Sastri who appears for the appellants in these appeals has raise only two contentions. The first is that the principle underlying S. 15 (1) of the Limitation Act is applicable to a case of this kind and that, therefore, the execution applications are within time. The second is that at any rate the letter dated April 19, 1949, written by the second defendant to the trustees operates as an acknowledgment of liability under S. 19 of the Limitation Act and, therefore, saves the limitation in respect of all the execution applications except the one out of which C.A. No. 104 of 1961 arises. According to Mr. Sastri the composition of a decretal debt does not amount to an adjustment or satisfaction of a decree until the acts required to be done thereunder have been performed. Here the composition scheme required payment of 40 percent of the decretal debts by the trustees to the creditors. According to him, until that condition was fulfilled the original decree cannot be said to have been satisfied. Since the decrees herein involved could not be regarded as having been satisfied they are still alive. Then, according to Mr. Here the composition scheme required payment of 40 percent of the decretal debts by the trustees to the creditors. According to him, until that condition was fulfilled the original decree cannot be said to have been satisfied. Since the decrees herein involved could not be regarded as having been satisfied they are still alive. Then, according to Mr. Sastri, where a composition scheme prescribes the period during which a condition has to be performed till the expiry of the period or performance of the condition the operation of the decrees must be deemed to have been stayed. For, during this period it would be incompetent to the decree-holders to execute their decrees. Such period could therefore be deducted by applying the principles underlying S. 15 (1) of the Limitation Act from computing the period of limitation for filing a fresh execution application. He concedes that here the composition scheme not having been certified to the execution court he defendants would not have been able to resist an execution application if made within the period of four years specified in the deed of composition. But the composition being binding on the appellants, they would have laid themselves open to suits for damages at the instance of the defendants if they had proceeded to execute their decrees within this period. Section 15 (1) of the Limitation Act runs thus : "15 (1): In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded". It is clear from is terms that it is restricted in its application to a case where the execution of a decree has been stayed by an injunction or an order. By no stretch by an injunction or an order. By no stretch of imagination can it be said that the acceptance by the insolvency court of the composition operated as a stay of execution of the decrees for the period of four years referred to in the deed or as an injunction. By no stretch by an injunction or an order. By no stretch of imagination can it be said that the acceptance by the insolvency court of the composition operated as a stay of execution of the decrees for the period of four years referred to in the deed or as an injunction. Further, the second defendant was not a party to the insolvency proceedings and could, therefore, not have been entitled to the benefit of the order of the court accepting the scheme of composition. 11. In support of his contention that the principles underlying S. 15 (1) are applicable to a case like the present one, Mr. Sastri has strongly relied on the decision in Govindanaik Gurnathanaik v. Basawannewa Parutappa, ILR (1941) Bom 435 : (AIR 1941 Bom 203 ). There, Beaumont C. J., has observed at p. 437 (of ILR Bom) : (at p. 204 of AIR) : "Section 15 of the Act recognizes the principle that in computing the period of limitation prescribed for an application for the execution of a decree, any period during which the execution of the decree has been stayed must be excluded; and it would certainly seem right to apply a similar principle to applications in a suit which has been stayed; in terms, however, the section does not apply. The only authority on the point, to which we have been referred, and which was referred to in the lower Courts, is Pulin Chandra Sen v. Amin Mia Muzaffar Ahmed, AIR 1933 Cal 508". Saying that this decision had stood for some years and had been dissented from, the learned Chief Justice observed : "I would rather base the appellant's case on the ground that the right to apply for a final decree was suspended during the period in which the suit was stayed. Such a principle was applied by the Calcutta High Court in Lakhan Chandra Sen v. Madhusudan Sen ILR 35 Cal 209 affirmed by the Privy Council in Nrityamoni Dassi v. Lakhan Chandra Sen, ILR 43 Cal 660 : ( AIR 1916 PC 96 ). "It would thus appear that the learned Chief Justice based his decision really on S. 14 of the Limitation Act. In both the cases referred to by the learned Chief Justice the provision of S. 14 of the Limitation Act were applied. 12. "It would thus appear that the learned Chief Justice based his decision really on S. 14 of the Limitation Act. In both the cases referred to by the learned Chief Justice the provision of S. 14 of the Limitation Act were applied. 12. In Pulin Chandra Sen's case AIR 1933 Cal 508 the facts were these : The next friend of a minor instituted a suit upon a mortgage but died after the preliminary decree was passed. No new next friend was, however, appointed in his place. The minor made an application for passing a final decree within 3 years after attaining majority, but three years after the period of grace fixed by the preliminary decree. The High Court, while holding that though the erstwhile minor was not entitled to claim the benefit of S. 6 of the Limitation Act held that the execution application must be regarded as within time since it had been made within three years from the date when the right to apply accrued to him on his attaining majority. No doubt, this is a case where in effect the court has applied the principles underlying S. 6 though it was clearly of opinion that S. 6 in terms did not apply. There is no discussion of the point at all apply. There is no discussion of the point at all and, therefore, we do not thing that this is a decision which needs to be considered. 13. The next two decisions relied on are Badruddin Khan v. Mahyar Khan, ILR (1939) All 103 : (AIR 1939 All 66) and Managing Committee Sunder Singh Malha Singh Rajput High School, Indaura v. Sundar Singh Malha Singh Sanatan Dharma Rajput High School Trust, ILR (1945) Lah 8 : (AIR 1944 Lah 190) (FB). In both these cases the court applied what according to it were the general principles underlying S. 15 of the Limitation Act, though the facts of these cases do not strictly fall within the purview of that section.The question is whether there is any well recognized principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in pursuance of his rights. The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by necessary implication. They cannot be extended by analogy or reference to proceedings of which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article. For the same reasons the provisions of Sections 3 to 28 of the Limitation Act cannot be applied to situations which fall outside their purview. These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in S. 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr. Sastri.” In the facts of the said case, Hon’ble Supreme Court was not concerned with the question as to whether the decree granted for part claim could be enforced only within the period of 12 years even if the appeals in connection with the suit proceedings are filed and pending before the higher forum. The effect of section 15 was examined for deciding whether the period during which the injunction or stay operated could be deducted by applying the principles underlying in section 15 of the Act for computing the period of limitation for filing the execution application. 21. The effect of section 15 was examined for deciding whether the period during which the injunction or stay operated could be deducted by applying the principles underlying in section 15 of the Act for computing the period of limitation for filing the execution application. 21. In the case of Ratansingh (supra), the Hon’ble Supreme Court has held and observed in paragraph no.8 to 11 as under: “8.When is a decree becoming enforceable? Normally a decree or order becomes enforceable from its date. But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events. The expression "enforceable" has been used to cover such decrees or orders also which become enforceable subsequently. 9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower Court and it is the appellate Court decree which becomes enforceable. When the appellate Order does not amount to a decree there would be no supersession and hence the lower Court decree continues to be enforceable. 10. A decree is defined in Section 2(2) of the C.P.C. as under: "Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any Order of dismissal for default. Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 11. In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench of the Calcutta High Court (S.P. Mitra, CJ, Sabyasachi Mukherjee, J. (as he then was) and S.K. Datta, J) has held in Mamuda Khateen v. Beniyan Bibi, AIR 1976 Cal 415 that "if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be decree and the order rejecting the memorandum of appeal is merely an incidental order." The reasoning of the Full Bench was that when an appeal is barred by limitation the appeal cannot be admitted at all until the application under Section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law.” However, in later decision in the case of Shyam Sundar Sharma v. Pannalal Jaiswal reported in (2005) 1 SCC 436 , Hon’ble Supreme Court held that the view expressed by two Judge Bench that the dismissal of appeal as time barred was not a decree could not be accepted as laying down correct law. 22. 22. In the case of Manohar Shankar Male (supra), the Hon’ble Supreme Court found that the decree of the trial court sought to be executed was composite one and the execution of the decree in regard to the possession which was independent and decree for mesne profit was not required tobe waited till the out come of the review application preferred by the decree debtor. The Hon’ble Supreme Court has also turned down the contention that on dismissal of the review application, the doctrine of merger will apply as though the party would be entitled to file review application under Order 47, Rule 1 of the Code, however, the decree passed would not merge with the order of dismissal of the review application. It is further observed that the matter might have been different if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree. 23. In the present case, the plaintiffs, unsatisfied with the judgment and decree passed by the trial Court in so far as the trial Court had not granted full claim as regards the subject matter of the suit, filed the Regular Civil Appeal and then the Second Appeal which could be said to be continuous proceedings of the suit to get their entire claim in the suit accepted. Therefore, the decree could have legitimately awaited its enforceability till the proceedings of the suit reached to its finality on final out come of the last appeal. In other way, the decree for part of the claim in the suit could not be said to have reached its finality till the decree was passed in the last appeal, may be of dismissal, and in such last decree, decree of the trial court would merge. Therefore, the date of drawing the decree of dismissal in the last appeal could be taken as starting point of limitation for the purpose of enforcement of the decree passed by the trial court as merged with the decree of the last appellate court. Therefore, the date of drawing the decree of dismissal in the last appeal could be taken as starting point of limitation for the purpose of enforcement of the decree passed by the trial court as merged with the decree of the last appellate court. Since there is clear distinction between the effect of dismissal of the review application on the point of merger and the dismissal of the appeal, where the judgment and decree of the trial Court is under scrutiny of the appellate Court, the decision in the case of Manohar Shankar Nale (supra) shall have no application in the facts of the present case. 24. The underlying object of exclusion of time for limitation as provided in section 15 of the Act is to safeguard a person who is precluded by injunction or order from executing the decree. Such provision for exclusion of time for limitation is based on the principles that an act of Court shall prejudice no one. Similar is the underlying object for provision in rule 5 of Order 41 of the Code that a decree holder should not be deprived of his right to reap the fruits of the decree merely because the defeated party has chosen to challenge the decree. 25. In the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., reported in (2005) 1 SCC 705 , the Hon’ble Supreme Court has held and observed in paragraph 8 as under: “8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.” 26. Thus, on account of the above said provisions of Order 41, Rule 5 of the Code and section 15 of the New Act, since the decree holder would not be deprived of his right to enforce the decree passed in his favour and if such decree could await its enforcement till the final out come of the appeals by the higher forum, the change brought in the Act as regards giving full 12 years limitation period for filing the execution petition will have no relevance keeping in focus the principles of merger of the decree with the decree of the appellate court. Simply because in Article 182 of the old Act, starting point of limitation of three years for execution of decree was provided from the date of final decree or the order of the appellate court and since words “where there has been appeal” are not carried in Article 136 of the Act, it cannot be said that the legislature intended that the decree could not wait its enforcement till the rights of the parties in the suit proceedings are finally decided in the appeal by the higher forum. If the principles of merger are accepted, it is irrelevant whether appeal was not against the decree granted for part claim in the suit. Even if the appeal is not preferred against the grant of such decree, still, if the plaintiffs have exercised their statutory right of appeal to get their full claim accepted, it could be said that the rights of the parties in the suit were still subject to final adjudication by the appellate court and it is decree of the appellate court which would finally decide the subject matter of the suit and therefore, the date of appellate decree is relevant for the purpose of computing limitation for enforcement of the decree of the trial court. 27. The judgment relied on by learned Advocate Mr. Parikh in the case of Maung Sein Done (supra), and in the case of Mantrala Rajagopalam, (supra) were since in the context of Article 182 of the old Act where the time for limitation of three years was also provided to run from the date of decree of the appellate court, they are not required to be discussed. 28. However, the Calcutta High Court in the case of Shyama Pada Choudhury (supra), considered the the question of starting point of limitation in the context of Article 136 of the Act, in paragraph 6 as under: “6. Counsel for the appellant has advanced elaborate arguments before us on the provisions of the Limitation Act of 1963 (Act XXXVI of 1963) and submitted that under Article 136 of the said Act which provides for limitation for execution of decrees the present application for execution is barred by limitation. Under Article 136 the period of limitation for execution of any decree or order of any Civil Court is 12 years from the date when the decree or order became enforceable. Mr. Dutt submitted that in the present case as there was no stay of operation of the decree of the trial court or any injunction restraining any execution of the said decree the defendants Nos. 1, 2 and 3 were competent to execute the decree of the trial court which was passed on 1st May, 1959 because according to Mr. Dutt, the decree became enforceable on the date on which it was passed. 1, 2 and 3 were competent to execute the decree of the trial court which was passed on 1st May, 1959 because according to Mr. Dutt, the decree became enforceable on the date on which it was passed. The present application for execution having been filed on the 2nd May, 1972 was barred by limitation.It is no doubt true that the decree for costs passed by the trial court in the present case could have been executed by the defendants Nos. 1, 2 and 3 upon taxation of costs but the position would be quite different after passing of the decree by the Appellate Court. Although the Appellate Court affirmed the decree of the trial court only with this modification that the decree for costs awarded by the trial court against the plaintiff was set aside it is the decree of the Appellate Court which alone can be executed and that decree cannot be said to have become enforceable at any time prior to 7th June, 1962 i. e. the date on which it was passed.” 29. In the case of Ramkrishna Bajirao Gotmare v. Kanhaiyalal Tribhuvanlal Shah, non-applicant reported in AIR 1990 Bombay 361, the Bombay High Court has held and observed in paragraph 4 to 7 as under: “4. Law Commission of India in its III Report 1956 on examining various provisions of the old Act and the abundance of conflict of case law, suggested that there was no justification either to continue the distinction between the types of decrees or orders made in Arts. 182 183, or to allow the subject to be dealt with by two different enactments or to retain the requirement of keeping the application alive every three years. The relevant part of the Report says : "There exists a provision already in S.48 of the Civil Procedure Code that a decree ceases to be enforceable after a period of 12 years. In England also the time fixed for enforcing a judgment is 12 years. Either the decree holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of a decree after that period. In England also the time fixed for enforcing a judgment is 12 years. Either the decree holder succeeds in realising his decree within this period or he fails and there should be no provision enabling the execution of a decree after that period. To this provision an exception will have to be made to the effect that the Court may order the execution of a decree upon an application presented after the expiration of the period of 12 years, where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the application. S.48 of, the Civil Procedure Code may be deleted and its provisions may be incorprated in this Act. Art.183 should be deleted and the decrees of the High Court must be placed on the same footing as decrees of other courts. There is no justification for making a distinction between decrees or orders passed by the High Court in the exercise of their original civil jurisdiction or orders of the Supreme Court and other decrees" The Statement of objects and reasons attached to the Bill virtually reproduces the above part of the Report. By S.28 of the new Act, S.48 of the Code was deleted and one consolidated Art.136 governing the subject was introduced. Art.136 is thus a package prepared out of assorted provisions of Arts.182 and 183 of the old Act and old S.48 of the Code. Close examination of the Report, the statement of objects and reasons attached to the Bill, S.48 of the Code. Arts.182 and 183 of the old Act and Art.136 of the new Act do not indicate the letter and/or spirit of S.48(1) of the Code of Article 183 of the old Act was in any way intended to be tinkered with.The only intention was to do away with separate limitations for different types of decrees, to do away with the requirement of taking step-in-aid every three years for keeping the decree alive and to incorporate the whole law on the subject in one enactment and in one Article. The similarity in the expression "the date of the decree sought to be executed" used in S.48 of the Code and "when a present right to enforce the judgment, decree or order" used in Art.183 of the old Limitation Act and "when's the decree or order becomes enforceable" used in Art.136 of the new Act is of great' relevance. All that Art.136 aims at is to provide only one period of limitation with a single terminus a quo which is the date when the decree or order becomes enforceable. 5. Since there are many decided cases on the question under the old Act and they have taken consistent view, it will be but proper to notice a few of them, because, it will have to be presumed that Law Commission as well as the Parliament were aware of the crystalized legal position then prevailing. I begin with ail old Division Bench decision of this Court in the case of Harilal Dalsukhram Saheba v. Mulchand Ashram, AIR 1930 Bom 225 wherein it is observed : "The principle relied on by Mr. Thakor is, that when once an appellate decree is passed, whether it confirms, varies or reverses that of the original Court, it is the only decree which can be executed for it has been substituted for that of the original Court." In the case of Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 it is held : "It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the soften thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying which he owes into Court." Above decisions are based on the doctrine of merger and/or incorporation. After all appeal is continuation of the suit. Though not in the context of a civil court decree but in the context of an order passed under the Income-tax Act in the case of Commr. After all appeal is continuation of the suit. Though not in the context of a civil court decree but in the context of an order passed under the Income-tax Act in the case of Commr. of Income-tax, Bombay v. M/s. Amritlal Bhogilal and Co., AIR 1958 SC 86 8 , the Supreme Court observed (at p. 871) "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision of law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirm the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement." In the case of Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta, AIR 1963 SC 1124 , it is observed (at p. 1126 of AIR) "It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate Court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision whether of reversal or modification or mere confirmation." If despite consistency in applying the doctrine of merger of appellate decree/order in the original decree] order, any change was intended by the Legislature it would have been made by using the express words. Not only there is no such indication either in the new Act, the statement of object and reasons attached to the Bill, or the Report, but words almost similar to those in section 48(1) of the Code or Article 183 of the old Act have been used in Article 136. It is pertinent to notice that Article 136 used the expression "any decree" and not "original decree". It is pertinent to notice that Article 136 used the expression "any decree" and not "original decree". After the new Act came into force the Supreme Court in the two cases (i) M/S.Gojar Brothers (P) Ltd. v. Ratan Lal Singly AIR 1974 SC 1380 and (ii) Laxmi Narayan Gain v. Niranjan Modak, AIR 1985 SC 111 , both rendered under the W. B. Premises Tenancy Act, reiterated its view that the trial Court decree merges in the appellate decree and it is that decree alone whether affirming, varying or modifying which rules. 6. Thus the conclusion is inevitable that consistent legal position has been that an appellate decree supersides the original decree on the basis of doctrine of merger, only that superseded decree is enforceable; and the new Act has not brought about any change in the above crystalized legal position. Such result would ensue even on the effect of O. 41, R. 35 of the Code which deals with the decree in appeal. Even if there is any doubt on the question its benefit must go to the decreeholder for whom obtaining a decree is generally a difficult task and realizing the fruits of the decree a distant dream.In this connection useful reference may be made to the case of Anandilal v. Ram Narayan, AIR 1984 SC 1383 , wherein in the context of section 48 of the Code, it is observed (at p. 1387 of AIR): "It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible." 7. It is contended that absence of provision like Article 182(2) in the new Act indicates that extension of time upto the date of the appellate decree was not intended in the new Act. I do not think that to be a deciding factor. True it is that the original decree is enforceable despite pendency of appeal if there is no stay, but that aspect is beside the point. Crux of the matter is, once it merges into the appellate decree, it ceases to rule. It is also contended that in that view of the matter, section 75 of the new Act would be rendered otiose. Crux of the matter is, once it merges into the appellate decree, it ceases to rule. It is also contended that in that view of the matter, section 75 of the new Act would be rendered otiose. Those provisions provide for exclusion of time during which order of stay operates.I do not see how the said section is rendered otiose. Stay referred therein is not confined to the stay granted by the appellate court. Moreover, such provision existed even in the old Act. Sect. 15 operates upon altogether different field and circumstances.” 30. In the case of Ramankutty Guptan versus Avara reported in (1994) 2 SCC 642 , the Hon’ble Supreme Court has held and observed in paragraph 8 as under: 8. Section 37 CPC enumerates that: "37. Definition of Court which passed a decree.- The expression `Court which passed a decree',or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,- (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and * * * Therefore, it is clear that the decree of the appellate court would be construed to be the decree passed by the court of first instance. It is settled law that an appeal is a continuation of the suit. Therefore, when a decree for specific performance has been dismissed by the trial court, but decreed by the appellate court, it should be construed to be in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. In K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, this Court held that on an oral prayer made by the counsel for the plaintiff for permission to deposit the entire amount as directed by the trial court this Court directed the appellant to deposit the amount within six months from that date together with interest and other conditions mentioned therein. In K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, this Court held that on an oral prayer made by the counsel for the plaintiff for permission to deposit the entire amount as directed by the trial court this Court directed the appellant to deposit the amount within six months from that date together with interest and other conditions mentioned therein. An application for extension of time for payment of balance consideration may be filed even in the court of first instance or in the appellate court in the same suit as the decree of the trial court stands merged with that of the appellate court which decree is under execution. It is to be seen that the procedure is the handmaid for justice and unless the procedure touches upon jurisdictional issue,it should be moulded to subserve substantial justice. Therefore technicalities would not stand in the way to subserve substantive justice. Take a case where the decree is transferred for execution to a transferee executing court, then certainly the transferee court is not the original court and execution court is not the "same court" within the meaning of Section 28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same court.” 31. In the case of Kunhayammed and others versus State of Kerala and another, reported in 2000 (6) SCC 359 , the Hon’ble Supreme Court has considered the aspect about doctrine of merger and observed in paragraph 28 to 40 as under: “28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 , this Court vide para 7 has emphasised three preconditions attracting applicability of doctrine of merger. They are : (i) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and, (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower Court and constitute the only final judgment. They are : (i) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and, (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower Court and constitute the only final judgment. In Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185 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 of logic flowing from the above-said decisions can usefully be utilised 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 jeopardised as the pendency of appeal reopens the issues decided and this Court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction. 29. In Gopabandhu Biswal v. Krishna Chandra Mohanty, there are observations vide para 8 and at a few other places that rejection of a special leave petition against the order of administrative tribunal makes the order of the Tribunal final and binding and the party cannot thereafter go back to the Tribunal to apply for review. 29. In Gopabandhu Biswal v. Krishna Chandra Mohanty, there are observations vide para 8 and at a few other places that rejection of a special leave petition against the order of administrative tribunal makes the order of the Tribunal final and binding and the party cannot thereafter go back to the Tribunal to apply for review. However, paras 12 and 13 of the judgment go to show that (i) the applications for review before the Tribunal were not within the principle laid down under Order 47, Rule 1 of the C.P.C., (ii) did not comply with the relevant rules contained in Central Administratve Tribunal (Procedure) Rules, 1987, (iii) the review applicants were not in the category of persons aggrieved, and (iv) the review petitions were filed beyond the period of limitation prescribed and the delay was not explained. Thus the case proceeds on the peculiar facts of its own. 30. In Junior Telecom Officers Forum v. Union of India, also the view taken by a two-Judge Bench of this Court is that the dismissal of the SLP, though in limine, was "on merits" and the Court had declined to interfere with the impugned judgment of the High Court except to a limited extent as noticed therein whereafter the Tribunal could not have reopened the matter. The order passed earlier by the Supreme Court is quoted in para 5 of the report. It clearly states that on SLP itself the Court heard counsel of both the sides. While dismissing the special leave petition on merits, this Court had to some extent interfere with the order of the High Court which was put in issue before the Supreme Court. It is clear that the Supreme Court had exercised appellate jurisdiction vested in it under Article 136 of the Constitution and heard both the sides though the leave was not formally granted and the special leave petition was not formally converted into an appeal. Hence this decision rests on the special facts of that case. 31. In Supreme Court Employees' Welfare Associations case, this Court held:- "When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. 31. In Supreme Court Employees' Welfare Associations case, this Court held:- "When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted." (Emphasis supplied) Leave granted - dismissal without reasons - merger results 32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal. Doctrine of merger and review :- 33. This question directly arises in the case before us. 34. The doctrine of merger and the right of review are concepts which are closely inter-linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review Court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But where the special leave petition is dismissed there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review Court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercise a power of review or deals with a review application on merits in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it. 35. It will be useful to refer to Order 47, Rule 1 of the Code of Civil Procedure 1908. It reads as follows : R. 1. Application for review of judgment. (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 36. For our purpose it is clause (a) sub-rule (1) which is relevant. It contemplates a situation where "an appeal is allowed" but "no appeal has been preferred". The Rule came up for consideration of this Court in Thungabhandra Industries Ltd. v. Govt. of A. P., AIR 1964 SC 1372 in the context of Article 136 of the Constitution of India. The applicant had filed an application for review of the order of the High Court refusing to grant a certificate under Article 133 of the Constitution. The applicant also filed an application for special leave to appeal in respect of the same matter under Article 136 along with an application for condonation of delay. The Supreme Court refused to condone the delay and rejected the application under Article 126. When the application for review came up for consideration before the High Court, it was dismissed on the ground that the special leave petition had been dismissed by the Supreme Court. This Court held that the crucial date for determining whether or not the terms of Order 47, Rule 1(1), CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. On the date when the application for review was filed the applicant had not filed an appeal to this Court and therefore there was no bar to the petition for review being entertained. 37. Let us assume that the review is filed first and the delay in the SLP is condoned and the special leave petition is ultimately granted and the appeal is pending in this Court. The position then, under Order 47, Rule 1, C.P.C. is that still the review can be disposed of by the High Court. 37. Let us assume that the review is filed first and the delay in the SLP is condoned and the special leave petition is ultimately granted and the appeal is pending in this Court. The position then, under Order 47, Rule 1, C.P.C. is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior Court preferred against the earlier decree the one before review becomes infructuous. 38. The review can be filed even after SLP is dismissed is clear from the language of Order 47, Rule 1(a). Thus the words "no appeal has been preferred in Order 47, Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the Superior Court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. Conclusions : 39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from this Court being the highest Court of the land. 40.A petition seeking grant of special leave to appeal may be rejected for several reasons. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from this Court being the highest Court of the land. 40.A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest of the maintainabilty of the petition. The Court may apply its mind to the merit worthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47, Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47, Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the Court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.” 32. In the case of Union of India and others versus West Coast Paper Mills Ltd. And another reported in (2004) 2 SCC 747 , the Hon’ble Supreme Court has held and observed in paragraph 24 to 44 as under: “24.The question as regard applicability of merger with reference to the provisions for departmental appeal and revision had first been considered by this Court in Sita Ram Goel v. Municipal Board, Kanpur, stating: (AIR p.1040,para 19) "19. The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or revision cannot be equated with proceedings before the regular Courts of law." 25. However, the said view was later on not accepted to be correct. 26. Despite the rigours of Section 3 of the Limitation Act, 1963, the provisions thereof are required to be construed in a broad based and liberal manner. However, the said view was later on not accepted to be correct. 26. Despite the rigours of Section 3 of the Limitation Act, 1963, the provisions thereof are required to be construed in a broad based and liberal manner. We need not refer to the decisions of this Court in the matter of condoning delay in filing appeal or application in exercise of its power under Section 5 of the Limitation Act. 27. In The State of Uttar Pradesh v. Mohammad Nooh, ( 1958 SCR 595 ) Vivian Bose, J. held that justice should be done in a common sense point of view stating : (AIR pp. 95-96 para 17) "17. I see no reason why any narrow or ultra technical restrictions should be placed on them. Justice should, in my opinion be administered in our Courts in a common sense liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hairsplitting technicalities" 28.However, in that case also a distinction was sought to be made between a judgment of a 'Court' and 'Tribunal'. 29. In S. S. Rathore v. State of MP, noticing the earlier Constitution Benches decision of this Court in Mohamad Nooh (supra), Madan Gopal Rungta v. Secy. to the Government of Orissa, Collector of Customs, Calcutta v. East India Commercial Co. Ltd., as well as 3-Judge Bench of this Court in Somnath Sahu v. State of Orissa, this Court observed (SCC p.589, para 14): "14. The distinction adopted in Mohammad Nooh case ( 1958 SCR 595 : AIR 1958 SC 86 ) between a Court and a Tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in Courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between Courts and Tribunals in regard to the principle of merger. On the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on August 31, 1966." 30.Rathore's case was followed in Mohd. Quaramuddin (Dead) By LRs. On the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on August 31, 1966." 30.Rathore's case was followed in Mohd. Quaramuddin (Dead) By LRs. v. State of A. P., and noticed in Kunhayammed. 31. We may now, keeping in view the law laid down by this Court, as noticed hereinbefore, consider the decisions relied upon by Mr. Malhotra. 32. In Juscurn Boid the question which arose for consideration was as to in a suit for recovery of the purchase money paid for sale of a patni taluk under Bengal Regulation VIII of 1819, which had been set aside; what would be the date when cause of action therefor can be said to have arisen ? 33. In that case several suits were filed. The sale was reversed in its entirety in the first suit. Stay was not granted in the other suits. In the peculiar fact situation obtaining therein it was held that under the Indian law and procedure when a original decree is not questioned by presentation of an appeal nor is its operation interrupted; where the decree on appeal is one of dismissal, the running of the period of limitation did not stop. 34. In Maqbul Ahmad, the question which arose for consideration was as to whether subsequent to the passing of a preliminary decree in the mortgage suit, an application to obtain execution under the preliminary decree can be dismissed. In that case a preliminary mortgage decree was obtained on 7th May, 1917 which was amended in some respects on 22nd May, 1917. Some of the mortgagors who were interested in different villages comprised in the mortgage, appealed to the High Court against the preliminary decree. Two such appeals were filed. One appeal succeeded while the other failed. The decrees of the High Court disposing of those appeals were made on 7th June, 1920 whereafter the decree-holder proceeded to seek execution under the preliminary decree. In the aforementioned situation, it was held :(AIR p.87) "It is impossible to say, apart from any other objection, that the application to obtain execution under the preliminary decree was an application for the same relief as the application to the Court for a final mortgage decree for sale in the suit. In the aforementioned situation, it was held :(AIR p.87) "It is impossible to say, apart from any other objection, that the application to obtain execution under the preliminary decree was an application for the same relief as the application to the Court for a final mortgage decree for sale in the suit. That being so, it is not permissible, on the basis of S. 14 in computing the period of limitation prescribed, to exclude that particular period." 35. The question which falls for consideration in this case did not arise therein. 36. Before we advert to P. K. Kutty, we may notice another decision of this Court in Sales Tax Officer, Banaras and others v. Kanhaiya Lal Makund Lal Saraf. In that case an order of assessment was in question which came up before this Court. The question which arose for consideration therein was as to whether Section 72 of the Indian Contract Act had any application. The Court held that cause of action for filing the suit for recovery would arise from the date when such payment of tax made under a mistake of law became known to the party. 37. In P. K. Kutty, an order of assessment under the Agricultural Income-tax was set aside by the High Court by a judgment dated 1st January, 1968. A civil suit was filed in the year 1974. The suit was held to be barred by limitation. A contention was raised therein that the appellant had discovered the mistake on 5th October, 1971 when the Court dismissed the appeal filed by the State against the order passed by the High Court dated 1st January, 1968. This Court negatived the said plea stating : (SCC p. 497,para 3) "3....We are unable to agree with the learned counsel. It is not in dispute that at his behest the assessment was quashed by the High Court in the aforesaid OP on 1-1-1968. Thereby the limitation started running from that date. Once the limitation starts running, it runs its full course until the running of the limitation is interdicted by an order of the Court." 38. Distinguishing Kanhaiya Lal , it was observed: "5... We do not have that fact situation in this case. Thereby the limitation started running from that date. Once the limitation starts running, it runs its full course until the running of the limitation is interdicted by an order of the Court." 38. Distinguishing Kanhaiya Lal , it was observed: "5... We do not have that fact situation in this case. The appellant is a party to the proceedings and at his instance the assessment of agricultural income-tax was quashed as referred to hereinbefore and having had the assessment quashed the cause of action had arisen to him to lay the suit for refund unless it is refunded by the State. The knowledge of the mistake of law cannot be countenanced for extended time till the appeal was disposed of unless, as stated earlier, the operation of the judgment of the High Court in the previous proceedings were stayed by this Court." 39. In Mohinder Singh Jagdev, also this Court held : (SCC p.232, para 7) "7. The crucial question is whether the suit is barred by limitation ? Section 3 of the Limitation Act, 1963 (for short, "the Act") postulates that the limitation can be pleaded. If any proceedings have been laid after the expiry of the period of limitation, the Court is bound to take note thereof and grant appropriate relief and has to dismiss the suit, if it is barred by limitation. In this case, the relief in the plaint, as stated earlier, is one of declaration. The declaration is clearly governed by Article 58 of the Schedule to the Act which envisages that to obtain "any other" declaration the limitation of three years begins to run from the period when the right to sue "first accrues". The right to sue had first accrued to the respondent on 10-9-1957 when the respondent's services came to be terminated. Once limitation starts running, until its running of limitation has been stooped by an order of the competent Civil Court or any other competent authority, it cannot stop. On expiry of three years from the date of dismissal of the respondent from service, the respondent had lost his right to sue for the above declaration." 40. Unfortunately in P. K. Kutty and Mohinder Singh Jagdev, no argument was advanced as regard applicability of doctrine of merger. The ratio laid down by the Constitution benches of this Court had also not been brought to the Court's notice. 41. Unfortunately in P. K. Kutty and Mohinder Singh Jagdev, no argument was advanced as regard applicability of doctrine of merger. The ratio laid down by the Constitution benches of this Court had also not been brought to the Court's notice. 41. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subjectmatter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 42. It has not been and could not be contended that even under the ordinary civil law the judgment of the appellate Court alone can be put to execution. Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S. Rathore (supra) was to be followed in the instant case. 43. The facts obtaining in Mohinder Singh Jagdev (supra) being totally different, the same cannot said to have any application in the facts obtaining in the present case. 44. We, therefore, are of the opinion that P. K. Kutty does not lay down the law correctly and is overruled accordingly.” 33. In light of the above, no error could be found in the conclusion drawn by the learned Judge in the impugned order that the limitation to file the execution petition would start from the date of order passed by this court in second appeal i.e. 28th February, 2013 when the appeal preferred by the plaintiffs was dismissed. The plaintiffs had filed the execution petition on 31st March, 2011 during the pendency of the second appeal and therefore, it cannot be said to be time barred. 34. For the reasons stated above, present revision application is rejected. Notice is discharged. Interim stay stands vacated.