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2018 DIGILAW 1386 (HP)

Paritosh Chauhan v. Anil Mohil

2018-07-25

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - This revision petition is directed against the order passed by the learned Civil Judge (Junior Division), Nahan, District Sirmaur, H.P. on 17.12.2011 whereby he dismissed the execution petition preferred by the petitioner as being time barred. 2. The undisputed facts are that Sh. Bikram Singh Thakur instituted a Civil Suit bearing No.80/1 of 1993 against the respondents and their predecessors in interest for mandatory and permanent prohibitory injunction and the same was decreed by the learned trial Court vide judgment and decree dated 21.09.1999 and directed the defendants by way of decree of mandatory injunction to remove the unauthorized constructions raised by them in the shape of a huge outer gate in the entrance, a staircase and a bathroom, a toilet, the room preventing the approach to the property of the plaintiff from the common passage adjoining to the latrines comprising of Khasra Nos. 202, 221/1, 221/2, 222 and 225/1, measuring 105-79 square metres, situated at Mohal Naya Bazar, Nahan and further the defendants were restrained by way of permanent prohibitory injunction from interfering or trespassing aforesaid property and the property of the plaintiff comprised in Khasra Nos. 216/2, 217, 268, total measuring 270-68 square metres, situated at Mohal Naya Bazar, Nahan with the costs of the suit. The defendants appealed against the aforesaid judgment and decree before the learned District Judge, District Sirmaur, who vide its judgment and decree dated 12.09.2000 passed in Civil Appeal No.119-CA/13 of 1999, modified the judgment and decree of the learned trial Court. The directions of the learned trial Court for demolition of the iron gate in front of the property from Naya Bazar and the stair case, bath room cum toilet and water tank in the common passage were set aside. The remaining part of the decree was allowed. The suit of the plaintiff was allowed for mandatory injunction against the defendants to the extent to demolish the room constructed by them in the common passage as described in the judgment passed by the learned trial Court. The defendants were also directed to remove debris/malwa thrown in the vacant side of the property of the plaintiff within three months from the date of the judgment. The defendants preferred regular second appeal against the judgment and decree of learned appellate Court before this Court by filing RSA No. 633 of 2000. Plaintiff also filed Cross Objections. The defendants were also directed to remove debris/malwa thrown in the vacant side of the property of the plaintiff within three months from the date of the judgment. The defendants preferred regular second appeal against the judgment and decree of learned appellate Court before this Court by filing RSA No. 633 of 2000. Plaintiff also filed Cross Objections. Both the RSA and Cross Objections were dismissed by this Court vide judgment dated 02.11.2006. 3. The present petitioner vide a registered sale deed dated 03.11.2006 purchased the suit property from the plaintiff Shri Bikram Singh Thakur. 4. The petitioner preferred an execution petition seeking execution of the judgment and decree of the learned appellate Court as upheld by this Court. However, the defendants/judgments debtors filed objections to the extent that the petitioner was not competent to file the execution petition, notice of the execution petition should have been served upon the original plaintiff, room sought to be demolished was not identifiable and defendants had adverse possession over the suit property etc. All these objections were dismissed by the learned trial Court upholding that the petitioner was very much competent to institute the execution petition, no notice of the execution petition was required to be served upon the original plaintiff, plea of adverse possession raised by the defendants in their written statement was rejected by all the Courts concurrently and the room sought to be demolished was very much identifiable. Though, all the issues framed in the execution petition were decided in favour of the petitioner/decree holder, however, the learned executing Court dismissed the execution petition on the ground that decree passed by learned appellate Court became enforceable three months after the pronouncement of the judgment i.e. 12.12.2000 and it could be executed within a period of three years from 12.12.2000. Since the execution was not preferred within a period of three years from 12.12.2000, therefore, it was dismissed as time barred. 5. Evidently, the learned executing Court dismissed the execution petition only on the ground that the same had not been filed within three years of passing of the decree and in accordance with Article 135 of the Limitation Act. 6. It is vehemently contended by Ms. 5. Evidently, the learned executing Court dismissed the execution petition only on the ground that the same had not been filed within three years of passing of the decree and in accordance with Article 135 of the Limitation Act. 6. It is vehemently contended by Ms. Jyotsna Rewal Dua, Senior Advocate, assisted by Shri Tijender Singh, Advocate, for the petitioner that the learned executing Court committed factual error in observing that there was no stay against the judgment and decree of the learned appellate Court dated 12.09.2000 and without considering the fact that regular second appeals had been preferred by the defendants/objectors before this Court by way of RSA Nos. 633 and 643 of 2000 whereby following interim orders were passed by this Court:- "In the meanwhile, the parties shall maintain status quo qua the nature and possession of the property in dispute." 7. On the other hand, Shri Karan Singh Kanwar, Advocate, appearing for respondents No.1 and 3, would support the order and claimed that the same has been passed in accordance with law and, therefore, the same be upheld. I have heard the learned counsel for the parties and gone through the records of the case. 8. It is not in dispute that the time period for enforcing the decree of mandatory injunction is provided under Article 135 of the Limitation Act which reads thus:- "Art. 135. For the enforce- Three years The date of ment of a decree the decree granting a mandatory or where a injunction. date is fixed for performance, such date." 9. Now, the moot question is whether in teeth of the order passed by this Court whereby the parties had been directed to maintain status quo, could the decree have been executed. Obviously, the answer is in the negative because till and so long the order of status quo was subsisting, the learned trial Court could not have enforced the decree of mandatory injunction as that would be in direct conflict and contrary to the orders passed by this Court. 10. That apart, it needs to be noticed that the learned executing Court has completely ignored the doctrine of merger. It cannot be disputed that an appeal is in continuation of the original suit and when the decision passed in the original suit is under consideration of the appellate Court the whole matter is writ large. 10. That apart, it needs to be noticed that the learned executing Court has completely ignored the doctrine of merger. It cannot be disputed that an appeal is in continuation of the original suit and when the decision passed in the original suit is under consideration of the appellate Court the whole matter is writ large. Even while affirming the appeal, the Court would be passing its own decree which would then merge with the decree resulting in merging of the decree of the trial Court with that of the appellate Court. 11. At this stage, certain precedents on the subject need to be noticed. 12. In Dilip versus Mohd. Azizul Haq and another , (2000) 3 SCC 607 , it was held as follows:- "Once a decree passed by a court has been appealed against the matter becomes sub-judice again and thereafter the appellate court acquires seisin of the whole case. A court of appeal shall have the same powers and shall perform as nearly as many be the same duties as conferred and imposed on courts of original jurisdiction. The hearing of an appeal under the processual law of the country being in the nature of a rehearing and it is on the theory of an appeal being in the nature of a rehearing that the Courts in this country have, in numerous cases, recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. As an appeal is a rehearing, it must follow that if an appellate court dismisses an appeal it would be passing a decree affirming eviction and thereby passes a decree of its own, and in the event it upsets the decree of the trial court, it would be again passing a decree of its own resulting in merger of decree of the trial court with that of the appellate court. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding." 13. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding." 13. Similarly, in Union of India and others versus West Coast Paper Mills Ltd. and another , (2004) 2 SCC 747 , the Hon''ble Supreme Court held as follows:- "It may be true that by reason of Section 46-A of the Indian Railways Act the judgment of the Tribunal was final but by reason thereof the jurisdiction of this Court to exercise its power under Article 136 of the Constitution of India was not and could not have been excluded. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a court or tribunal. Once a special leave is granted and the appeal is admitted, the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. Even in relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally disposed of by the court of appeal. The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realized would, thus, begin from the date of the order passed by this Court. It is also not in dispute that the respondent herein filed a writ petition which was not entertained on the ground stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition was pending, excluded for computing the period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view." 14. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The trial Judge as also the High Court have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no reason to take a different view." 14. However, more pertinent and important observations have been made in a decision by Hon''ble three Judges of the Hon''ble Supreme Court in Chandi Prasad and others versus Jagdish Prasad and others , (2004) 8 SCC 724 wherein while dealing with the doctrine of merger, it was observed as under:- "Merger 23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 24. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. [See V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income-tax , (2000) AIR SC 1623]. 25. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and Others Vs. State of Kerala and Another , (2000) 6 SCC 359 wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply stating: (SCC p.383, paras 41-43) "41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68) 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." 26. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." 26. In Kunhayammed, it was observed: ( SCC p.370, para 12) "12 ..Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." 27.The said decision has been followed by this Court in a large number of decisions including Union of India and Others Vs. West Coast Paper Mills Ltd. and Another , (2004) 2 SCC 747 ." 15. What thus emerges from the aforesaid exposition of law is that once the decree and judgment passed by the trial Court is appealed against, and the judgment is rendered by the appellate Court either affirming or dismissing the appeal, the decree passed in the original suit becomes inoperative, since the lacuna of merger comes into play. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. 16. Admittedly, RSA Nos. 633 and 643 of 2000 came to be decided by this Court only on 02.11.2006 and, therefore, it was on this date that the decree as passed by the trial Court finally merged with the decree of this Court and became executable. Concededly, the execution petition was thereafter filed within one year of the said decision i.e. 22.10.2007 and, therefore, the same could not have been dismissed on the ground that it was barred by limitation. 17. Concededly, the execution petition was thereafter filed within one year of the said decision i.e. 22.10.2007 and, therefore, the same could not have been dismissed on the ground that it was barred by limitation. 17. Having said so, the present petition is allowed. The order passed by the learned executing Court on 17.12.2011 is clearly not sustainable in the eyes of law and is accordingly set aside. The learned executing Court is directed to restore the execution petition to its original number and thereafter proceed to execute the same in accordance with law. Pending application, if any, also stands disposed of.