ORDER : (Nyapathy Vijay, J.) C.R.P(Sr).No.9967 of 2014 is filed questioning the order dated 09.10.2012 passed in I.A.No.1 of 2011 in A.S.No.23 of 2001 by the Principal Senior Civil Judge, Rajampet, Kadapa District in dismissing the I.A., to restore the appeal by setting aside the dismissal order dated 27.01. 2011. 2. C.R.P.No.3209 of 2015 was filed questioning the order dated 27.07.2015 in E.P.No.27 of 2014 in O.S.No.244 of 1999 passed by the Junior Civil Judge, Nandaluru rejecting the plea of bar of limitation urged by the petitioner/judgment debtor. 3. Petitioner is the judgment debtor. Respondents filed O.S.No.244 of 1999 seeking relief of declaration of title over A, B, C-1 and D-1 property shown in the plaint plan and to direct the defendants to remove the encroached portion A,B,C-1 and D-1 by way of mandatory injunction and also deliver vacant possession of the same. Further, the defendants were sought to be restrained by way of permanent injunction without making any further construction in C-1 and D-1 wall. The said suit was decreed on 13.03.2001. Petitioner/judgment debtor filed A.S.No.23 of 2001 before Senior Civil Judge, Rajampet on 24.04.2001. During the pendency of the appeal, the decree holder died on 28.06.2006 and their legal heirs were added in the appeal vide order dated 29.08.2006 in I.A.No.702 of 2006. A.S.No.23 of 2001 was dismissed for default on 27.01.2011. Petitioner/judgment debtor filed restoration petition i.e. I.A.No.1 of 2011 and the same was dismissed. Questioning the same, the petitioner file the present CRP (SR) along with an application to condone the delay of 434 days in filling the same. 4. Respondents filed E.P.No.27 of 2014 on 04.02.2014 before the Junior Civil Judge, Nandaluru for execution of the judgment and decree in O.S.No.244 of 1999 in view of the dismissal of the appeal for default and the consequential dismissal of I.A.No.1 of 2011 for restoration. 5. In the E.P., the petitioner/judgment debtor filed counter contending that the E.P is barred by limitation as there was no stay during the pendency of the appeal. The further plea was that since the appeal was dismissed for default, there is no merger of the order of the trial Court in the appellate Court and as such, the limitation for execution is the date of judgment and decree of the trial court. The said objections were overruled by the trial Court and hence, the present revision. 6. The further plea was that since the appeal was dismissed for default, there is no merger of the order of the trial Court in the appellate Court and as such, the limitation for execution is the date of judgment and decree of the trial court. The said objections were overruled by the trial Court and hence, the present revision. 6. Heard Sri V.Roopesh Kumar Reddy, learned counsel for the petitioner and Sri T.Lakshmi Narayana and Sri Balaji Medamalli, learned counsel for the respondents. 7. Learned counsel for the petitioner had sought for withdrawal of C.R.P (SR).No.9967 of 2014 and a letter to that effect was submitted in the Registry on 29.08.2023 along with letter of the petitioner. This request for withdrawal was opposed on the ground that the petitioner is trying to take advantage of the dismissal of the appeal to bolster his plea that the E.P is barred by limitation, but this objection cannot be sustained as this Court cannot compel the appellant to argue the appeal on merits or pass order on merits in view of Explanation to Order 41 Rule 17 C.P.C. 8. Therefore, this Court is over ruling the objection urged by the learned counsel for the respondents and the CRP is dismissed as withdrawn. 9. Coming to C.R.P.No.3209 of 2015, the issue that falls for consideration is whether the pendency of appeal i.e. from 24.04.2001 i.e. date of filing till dismissal for default on 27.01.2011 be excluded for the purpose of computation of limitation? 10. Learned counsel for the petitioner cited on the following judgments: 1. Ratan Singh v. Vijay Singh, 2001 (1) SCC 469 2. Chandi Prasad v. Jagadish Prasad, 2004 (8) SCC 724 3. Manohar Shankar Nale v. Jaipalsing, 2008 (1) KerLT 832 4. Ram Bachan Rai v. Ram Udar Rai, 2006 (9) SCC 446 5. Neela Chinna v. Gangadharan Pillai, 2011 Lawsuit (Ker) 1702 11. Learned counsel for the respondents relied on Union of India and others v. West Coast Paper Mills Ltd., and another, 2004 (2) SCC 747 . 12. Issue : The question whether the pendency of an appeal even though there is no stay should be excluded for the purpose of calculation of limitation for execution proceedings was considered by a Division Bench of this Court in Posani Ramachandraiah vs. Daggupati Seshamma, AIR 1978 AP 342 . 12. Issue : The question whether the pendency of an appeal even though there is no stay should be excluded for the purpose of calculation of limitation for execution proceedings was considered by a Division Bench of this Court in Posani Ramachandraiah vs. Daggupati Seshamma, AIR 1978 AP 342 . In that case, the suit was decreed on 29.07.1958 and first appeal was dismissed by this Court on 26.09.1963. The L.P.A filed thereon was dismissed. Thereafter, E.P.No.39/1973 for recovery of costs and E.P.No.151/1973 for recovery of mesne profits were filed by the decree holder on 23.04.1973. 13. In E.P.No.39/1973, a defense was raised that the same was barred by limitation including Article 136 of the Limitation Act, 1963. It was contended that as there was no stay during the pendency of the first appeal and L.P.A in the High Court, the E.P.No.39/1973 stood barred by limitation as stated supra. The Division Bench of this Court after referring to Article 182 of the Limitation Act,1908, Section 48 CPC and Article 136 of the Limitation Act,1963, held that the limitation for filing of E.P starts from the date of disposal of the appeal even though, there was no stay in the appeal. Para 10 thereof is extracted below:- “10. When the Legislature enacted Art.136 by omitting S.48 C.P.C. and reproducing it Art.136, we have to take it that they must have been aware of the interpretation of S.46 by the Courts and approved of it. Consequently, we hold that under Art.136 of the present Limitation Act, the period of limitation can be reckoned from the date of the appellate decree, even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate court, and the period of limitation has to be reckoned from the date of that decree. In this case, the L.P.A was dismissed on 30-10-1969. From that date the decree became enforceable. Therefore, E.P.No.39/1973 filed on 23-4-1973 within time, for it was filed within 12 years under Art.136 of the Limitation Act. Consequently, we affirm the decision of Punnayya, J., and dismiss L.A.P.A.No.4/1977.” 14. In this case, the L.P.A was dismissed on 30-10-1969. From that date the decree became enforceable. Therefore, E.P.No.39/1973 filed on 23-4-1973 within time, for it was filed within 12 years under Art.136 of the Limitation Act. Consequently, we affirm the decision of Punnayya, J., and dismiss L.A.P.A.No.4/1977.” 14. In the list of citations, the counsel for the petitioner relied on a decision in Ratansingh vs. Vijaysingh and others, (2001) 1 Supreme Court Cases 469 which was specifically overruled by three Judge Bench of the Hon’ble Supreme Court in Shyam Sundar Sarma vs. Pannalal Jaiswal and Others, (2005) 1 SCC 436 . Even otherwise, the observations in the said Judgment were not relevant for the facts of that particular case. 15. It is also to be noticed that the Hon’ble Supreme Court in Bhagmal Alias Ram Bux and Others vs. Munshi (dead) by LRs and Others, (2007) 11 Supreme Court Cases 285 had considered the issue of limitation vis-a-vis disposal of appeal as abated. In that case, second appeal was dismissed as abated and when execution proceedings were filed, it was contended that the same is barred by limitation, since the limitation cannot be counted from the date of abatement of second appeal as the same is not an order on merits and consequently, there is no merger of the enforceable decree. 16. Though, the Hon’ble Supreme Court opined that dismissal of appeal as abated would not be construed as a disposal on merits, but the same would amount to finality of the decision and that the decision on merits is not the only test to determine the finality of decision and therefore opined that the limitation would start from the date the appeal stood dismissed as abated. Paras 28 and 29 thereof are extracted as hereunder:- “28. The provisions of statute of limitation cannot be construed in a pedantic manner. This is now a well-known principle of law. Had the appeal been dismissed on merit, indisputably the period of limitation would have started from the date of dismissal of the second appeal. The respondents themselves preferred an appeal. The appeal was a continuation of a suit. The appellants herein could not, thus, have been held to be aware of the fact that during pendency thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation. The respondents themselves preferred an appeal. The appeal was a continuation of a suit. The appellants herein could not, thus, have been held to be aware of the fact that during pendency thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation. An appeal abates after three years of the judgment and decree passed by the first appellate court and in that situation the appellant would have no chance to reap the benefit thereof, if the submission of the learned counsel appearing on behalf of the respondent is accepted. The law, in our opinion, cannot be construed in a manner which would defeat the ends of justice. 29. In fine, when an appeal/suit abates, the same may not amount to adjudication of a decree on merit but indisputably it would attain finality. Decision on merits is not the only test to determine the finality of decision. Finality gained due to abatement is an illustration of the aforementioned variety. The declaratory decree, in that view of the matter passed in favour of the respondents, had attained finality only when the order dated 14-10-1977 was passed.” 17. It is to be noted that dismissal of appeal as “abated” in effect would mean dismissal of appeal for default in bringing the legal representatives of the contesting party. In effect, there is no difference in dismissal of appeal as abated or for default. 18. Even, if there is no merger, the limitation would start from the date of disposal of the appeal i.e final determination of lis and therefore, the E.P filed by the decree holder cannot be said to be barred by limitation. If a contra view is taken, the litigious appellants would be incentivized to get the appeals without any interim order, be dismissed for default and frustrate the execution on the ground of limitation. 19. Coming to the citations relied on by the petitioner Chandi Prasad vs. Jagdish Prasad, 2004 (8) SCC 724 was a case of dismissal of appeal as on the ground of limitation and it was in that context the Hon’ble Supreme Court that the doctrine of merger would not apply. 19. Coming to the citations relied on by the petitioner Chandi Prasad vs. Jagdish Prasad, 2004 (8) SCC 724 was a case of dismissal of appeal as on the ground of limitation and it was in that context the Hon’ble Supreme Court that the doctrine of merger would not apply. The Judgment of the Hon’ble Supreme Court in Ram Bachan Rai vs. Ram Udar Rai, 2006 (9) SCC 446 was a case of an ex parte decree and applications to set aside the ex parte decree cannot be excluded for the purpose of calculating limitation under Article 136 of the Limitation Act, the same is not the case in this Revision and the facts are different. 20. The Judgment of the Hon’ble Supreme Court in Manohar Shankar Nale vs. Jaipalsingh Shivlalsingh Rajput, 2008 (1) SCC 520 was a case of exclusion of time sought on the ground of pendency of Review application, the same is not the case here. The Judgment of the High Court of Kerala in Neela Chinna v. Gangadharan Pillai, 2012 (3) ILR (Ker)11 is respectfully disagreed in view of the Division Bench Judgment of this Court referred supra. 21. Therefore, following the decision of the Division Bench of this Court and that of Hon’ble Supreme Court, this Court holds that notwithstanding the fact that there was no decision on merits in the appeal nor stay was operating pending appeal, the limitation for execution would start from the date of disposal of the appeal. 22. Therefore, the conclusion of the trial court is affirmed. Consequently the Revision Petition stands dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.