1. Heard the learned counsel for the parties.
2. Petitioner is plaintiff decree-holder and is aggrieved by the impugned order dated 19-7-2003 by which the learned Subordinate Judge III, Buxar, allowed the petition of the Opposite parties (Judgment-debtors) and dismissed Execution Case No. 5/1998 as time barred.
3. Admitted facts of this case are that the petitioner had filed Title Suit No. 13/1979 for a declaration that he was an Assistant Jailor and had become entitled to the post of Superintendent of Jail and denial of promotion, salary etc. to him was illegal. The said suit was decreed on 26-9-1979 (Annexures 1 and 2) by the learned Second Additional Subordinate Judge, Buxar, and the said decree was challenged by the defendant opposite parties (State of Bihar and another) in Title Appeal No. 168/1979 which was dismissed on merits with cost by the learned 5th Additional District Judge, Bhojpur, on 21-12-1985 (Annexures 3 and 4). Furthermore, against the said appellate decree the opposite parties preferred Second Appeal No. 152/1987 in this High Court and the same was dismissed on 16-9-1988 due to non compliance of this Court's order and the said dismissal was recorded on 14-3-1989 (Annexure 5).
4. The learned counsel for the petitioner claimed that he had also filed representation dated 25-9-1987 (Annexure 6) before the defendants-authorities for taking steps as per the Judgment of the lower Appellate Court, but the said representation was rejected on 12-8-1988 (Annexure 7). He further contended that even after dismissal of the Second Appeal the petitioner filed a representation on 10-4-1998 (Annexure 8) for the same purpose, but the defendants authorities took no steps thereupon and hence the petitioner filed Execution Case No. 5/1998 on 24-9-1998 for execution of the decree in his favour. This Execution case has been dismissed by the impugned order on the ground that it was filed much more than twelve years after the date of the Judgment in Title Appeal dated 21-12-1985.
5. The submissions of the petitioner's counsel are three fold. Firstly, that as per Art, 136 of Limitation Act, limitation for filing the execution case should have been counted from 16-9-1988, the date of the order of this High Court and not from 21-12-1985, the date of Judgment of the lower Appellate Court which was challenged in Second Appeal. In this connection, he relies upon a decision of the Hon'ble Apex Court in case of Union of India v. West Coast Paper Mills Ltd., reported in (2004) 2 SCC 747 : (AIR 2004 SC 1596), regarding the doctrine of merger. Secondly, that after the appellate Judgment the petitioner had filed representation before the defendants authorities for honouring the decree and taking steps in accordance thereto, and hence limitation should have been counted from 12-3-1988, the date on which the said representation was rejected. And thirdly, that such technicalities should not stand in the way of substantial justice as the decree was affirmed up to the High Court and hence the opposite party-defendants, which claims to be a welfare State, should not have taken such technical grounds and the learned court below itself should have condoned the delay. In this connection, he relies upon two decisions of the Hon'ble Apex Court in cases of Ramnath Sao v. Gobardhan Sao, reported in 2002 (3) Pat LJR (SC) 247 : (AIR 2002 SC 1201) and State of Bihar v. Kameshwar P. Singh, reported in 2000 (3) Pat LJR (SC) 81 : (AIR 2000 SC 2306), by which long delays were condoned.
6. On the other hand, the learned counsel for the Opposite parties has submitted that from the earlier order of this Court dated 2-9-1988 (Annexure 5) itself, it is apparent that Second Appeal No. 152/1987 filed against the Judgment and decree of the lower Appellate Court dated 21-12-1985 (Annexure 3) was dismissed on 16-9-1988 for non compliance of the Court's order dated 2-9-1988 for removing all the defects in the memorandum of appeal. Hence, he claims that such rejection of the Second Appeal for default would not amount to a decree and can not be considered for counting the limitation and thus the learned Court below rightly counted the limitation from the decree of the lower Appellate Court and dismissed the execution case as barred by the law of limitation. In this connection, the learned counsel for the opposite parties relied upon a decision of the Hon'ble Apex, Court in case of Ratan Singh v. Vijay Singh, reported in 2001 (1) BBCJ (SC) 6 : (AIR 2001 SC 279). He further claimed that there was neither any petition nor any prayer by the petitioner for condonation of delay in the filing of the execution case and hence there was no occasion for the Court below to condone the delay suo motu. He further submits that earlier Execution Case No. 1/1987 was filed for realisation of cost awarded by the same decree and the said Execution case was dropped upon payment of cost, hence there was no occasion for the second Execution case.
7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the main question in issue in this case is the date from which the period of limitation of twelve years would start for filing of the execution case. It is admitted fact that Execution Case No. 5/1998 was filed on 24-9-1998 and hence if limitation is counted from 21-12-1985, the date of the decree of Title Appeal No. 168/1979, as claimed by the opposite parties (defendants-Judgment debtors), the execution case was time barred. But if limitation is counted from 16-9-1988, the date of dismissal of Second Appeal No. 152/1987, as claimed by the petitioner (plaintiff-decree holder), the execution case would be within the period of limitation of twelve years as prescribed under Art. 136 of the Limitation Act.
8. Article 136 of the Limitation Act, 1963, specifically provides that the time from which period of limitation begins to run is when the decree or order becomes enforceable. In a case where the decree of the lower courts is challenged in Second Appeal which results into a decree passed by this Court, then the decree of the courts below merges with the Judgment and decree of the Second Appeal and the decree becomes enforceable and the period of limitation under Art. 136 of the Limitation Act is to be counted from the date of the Judgment in the Second Appeal. Even when the appeal is dismissed on any preliminary matter or is dismissed for default, it would naturally amount to confirmation of the Judgments and decree of the lower courts, which would attain finality only thereafter and hence the final decision would be that of the second Appellate Court and the decree of the courts below could be legally treated as enforceable only thereafter. It would thus be absolutely immaterial that there was no order in the Second Appeal staying execution of the decree and that the decree of the Courts below could have been executed by the Decree holder immediately after the said decree.
9. The view of Sir Dinshah Mulla, which was agreed to by Lord Blanesburgh, Lord Tomlin, Lord Russel and Sir George Lownders while sitting in Privy Council (AIR 1932 PC 165) is very clear in this regard that there was no definition of appeal in the Code of Civil Procedure but there is no doubt that any application by a party to an Appellate Court asking it to set aside or revise a decision of the subordinate Court is an appeal within the ordinary acception of the term and that it is no less an appeal because it is irregular or incompetent.
10. Furthermore, so long as there is any question subjudice between the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to any disadvantage. Nor in such case as this is the Judgment debtor prejudiced as he has indeed obtained a boon of delay which is so dear to debtors and if the Judgment-debtor is virtuously inclined, there is nothing to prevent his paying what he owes into court, specially when in this case the Judgment-debtor is a welfare State.
11. In the instant matter, the defendants-opposite parties after losing in both the courts below had itself filed the Second Appeal and for reasons best known to it allowed the Second Appeal to be dismissed for non compliance of the Court's order and hence it kept the matter subjudice and hanging in uncertainty which must have been to the chagrin of the plaintiff-decree holder. Hence, it does not lie in the mouth of the defendants-Judgment debtor now to turn around and say that filing and dismissal of the Second Appeal should not be taken account of.
12. In the said circumstances, I hereby hold that the decree of the courts below became enforceable after the Second Appeal, which was filed against it and which had kept the matter subjudice, was dismissed on 16-9-1988 and that from that date the period of limitation of twelve years, as prescribed in Art. 136 of the Limitation Act, would begin to run and hence the execution case filed on 24-9-1998 was well within the period of limitation.
13. This aspect of the matter has been completely over looked by the learned Court below and the provision of law within respect thereto have been misconstrued in the impugned order, which is thus set aside and the learned Executing Court is directed to proceed with the execution case till its logical conclusion in accordance with law.
14. Accordingly, this civil revision is allowed.
Petition allowed.