1. On 27-11-1978 the trial court passed a decree of mandatory injunction in O.S 550/76, for demolition of a but, within one month. The defendant appealed; and in I.A 661/79 in A.S 52/79 the District Court passed an order on 29-3-1979 staying “all execution proceedings” in the suit, pending disposal of the appeal. The appeal was eventually dismissed on 5-2-1982. On 8-6-82 the decree holder filed E.P 133/82 for execution of the decree. The judgment debtor objected. The executing court over-ruled the objections by order dated 13-1-83 and it is this order which is now under challenge.

2. E.P 133/82 was admittedly an application for executing the decree in A.S 52/79. The first contention urged on behalf of the petitioner (judgment-debtor) is that as he had filed S.A 584/82 before this Court, against the judgment and decree of the District Court, what could have been put into execution was only the decree in the S.A, and that too, only after suitably amending the E.P, and not the decree in the First Appeal. It is said that the decree in A.S 52/79 had merged in the decree in S.A 584/82 (though the S.A was dismissed in limine) and that consequently the former had ceased to exist and had become incapable of enforcement.

3. The question then is whether the dismissal of a Second Appeal by the High Court, at the admission stage, and without notice to the respondents, would result in a new decree in which the decree of the lower appellate court merges, or in-the bringing into existence of something which displaces or extinguishes the former as an enforceable decree. So far as this Court is concerned, the matter was settled more than two decades ago by the decision reported in Chakkuvarkey… v. Devassy Kathanar…. (AIR. 1962 Kerala 104) where M.S Menon J. (as he then was), speaking for a Division Bench, answered the question in the negative; but counsel for the petitioner contends that that decision can no longer bold the field in view of the later decision by another Division Bench in Chandrika Amma v. Mohammed (1984 KLT. 677 : 1984 KLJ. 525). The question therefore requires careful consideration; and before proceeding to examine the trend of case law, it may perhaps be useful to look into the relevant statutory provisions also. An appeal may be disposed of without any pronouncement on the merits of the case, in a number of situations. It may be dismissed for delay; and it may be dismissed, even if filed in time, under Rule 11(1) of Order XLI of the Code. It may sometimes be dismissed for failure to pay sufficient court-fee. Appeals get abated also on some occasions. These are all supposed to be situations where the appeals are dismissed or disposed of: but do such disposals results in decrees, as defined in the Civil Procedure Code?

4. S. 2(2) of the Civil Procedure Code defines “decree” as the formal expression of an adjudication determining the rights of parties with regard to all or any of the matters ˜ in controversy in a suit, and goes on to add that the rejection of a plaint shall also be deemed to be a decree. The rejection of a plaint, say under Order 7 Rule 11, does not involve an adjudication determining rights of parties, and there cannot therefore be a formal express ion of such an adjudication. (In fact, the rejection of a plaint under Or. 7-R. 11 does not by itself bar a fresh suit in respect of the same cause of action). That is probably why the legislature found it necessary to incorporate a deeming provision to bring such rejection within the scope of a ‘decree and but for the deeming provision, rejection of a plaint will not obviously be a decree. There is no similar deeming provision regarding rejection of appeals, without notice to the other side. And one inference which could possibly be drawn from this cirumstance is that the dismissal of an appeal in limine will not result in a decree (subject of course to a new provision in the Code introduced by the 1976 amendment, to be presently noted). No doubt there are decisions which invoke S. 107(2) of the Code to hold that the rejection of an appeal could also be treated in the same, fashion as the rejection of a plaint, for the purposes of being treated as a decree. This’ approach was not being uniformally approved even before Act 104/76; and after the coming into force of the said Amending Act, the reasoning, if I may say so with great respect, has become more tenuous.

5. The provisions of the Code dealing with Second Appeals are primarily those contained in Ss. 100 and 101 of the Code; and after Act 104/76, they read as follows:—

“100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the caae does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other Substantial question of law, not formulated by it, if it is satisfied that the case involves such question”.

“101. Second appeal on no other grounds.—No second appeal shall lie except on the grounds mentioned in S. 100”.

6. While S. 100 provides that a second appeal to the High Court will lie if that Court is satisfied that the case involves a substantial question of law, S. 101 puts it negatively by directing that no such appeal shall lie unless such a question of law is involved. Where, therefore, the High Court rejects or dismisses a second appeal at the admission stage itself, without notice to the other side, what it really does is to bold or declare that in the particular case, no second appeal lies. If you stretch it a little more and fall back on the language of S. 100, yon may be able to suggest that what is done is to hold that the case involves no substantial question of law. To say that no appeal will lie owing to absence of any substantial question of law cannot be equated to an adjudication determining the rights of parties, the formal expression of which alone will be a ‘decree’ under S. 2(2).

7. sub-sections (4) and (5) of S. 100 indicate what the High Court is expected to do when it is satisfied that a Second Appeal involves a substantial question of law. It shall first formulate that question (or questions). The appeal shall then be heard on the question formulated, and the other side shall also be given an opportunity to contend that no such question is really involved. Shorn of details, the opposite side comes into the picture only when the appeal is admitted and even then with a right to urge, apart from other relevant matters, the specific point that it involves no substantial question of law, requiring a third-level adjudication on merits. Technicalities apart, sub-sections (4) and (5) of S. 100 thus contemplate cases where a second appeal involves an adjudication of the nature specified in S. 2(2), a rejection of an appeal under S. 101 does not involve any such adjudication.

8. Order XLI which regulates the procedure governing First Appeals, contains the following provision in Rule 11:—

“Power to dismiss appeal without sending notice to Lower Court.—(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear When the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred

(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment”.

9. Sub-rules (1) to (3) of Rule 11 were there even prior to Act 104/76; but sub-rule (4) was added by the said amendment. Sub-rule (I) empowers dismissal of a First Appeal at the admission stage itself in certain cases, without notice to the respondents; and under sub-rule (4) where an appeal is so dismissed by any appellate court, “not being the High Court”, a judgment has to be delivered and a decree has to be drawn an. It has been stated by commentators that the sub-rule was inserted to give legislative recognition to earlier decisions holding that the dismissal of a First Appeal under Rule 11(1) required the delivery of a judgment and the drawing up of a decree. Be that as it may, what is more important for our purpose to notice is that the requirements of the sub-rule are not applicable to dismissals of appeals by the High Court. The High Court need not deliver a judgment or draw up a decree; and where there is no judgment and decree, bow can any one say that the decree of the court below has merged in the decree of the High Court or has been displaced by it?

10. Rale 3A of Order XLI dealing with condonation of delay in preferring appeals, and introduced by the 1976 amendment, may also be relevant. It reads: ˜

“3A. Application for condonation of delay.—(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not. after hearing under Rule 11, decide to hear the appeal”

11. Where an application for condonation of delay is dismissed, the Appeal is also dismissed as a consequence. Will the dismissal of an appeal under such circumstance amount to a decree? It seems to me that sub-rule (3) gives a clue. The sub-rule speaks of a “proposed appeal”, which gets transformed into appeal only when the delay is excused and the hurdle of Rule 11(1) is also crossed. A stay of the decree appealed against can be granted only after the appellate court “decides to hear the appeal as above. The dismissal of an appeal, following the dismissal of a delay petition, is thus only the dismissal of a proposed appeal, before the court, reaches the stage of deciding whether the appeal should be heard or not. Such a dismissal cannot amount to an adjudication of the rights of parties, to qualify itself for beiog brought within the meaning of S. 2(2).

12. The provisions of Order XLI Rule 11 are applicable to Second Appeals also, by virtue of Rule (I) of Order XL If. Rule (2) of the said Order, also introduced by the ameodment of 1976, and which also appears to be significant, reads: —

“Power of Court to direct that the appeal be heard on the question formulated by it. At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by S. 100. and in doing so the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of S. 100”.

13. The rule reiterates that while admitting a second appeal, the Court shall formulate the question of law. At that stage it may also direct that the appellant cannot urge any other ground in the appeal without the Court's leave. But the leave itself can only be given in accordance with the provisions of S. 100. These provisions are also capable of suggesting that there will practically nothing to be adjudicated in a Second Appeal, in’ the absence of a substantial question of law.

14. In view of the above statutory provisions, it may be pardonable to repeat that where a Second Appeal is dismissed in limine, what happens is only an expression of opinion by the Court that the appealis not enter-tainable; and there is no adjudication, judgment or decree in such a case. In fact, the other side may not even know that a Second Appeal has been filed and rejected.

15. Turning now to decisions, the facts in Chakkuvdrkey v. Devassy Kathanar (AIR. 1962 Ker. 104) were these. The Munsiff Court of Perum-bavur passed a decree in a suit on 11-8-1947. The District Court confirmed the decision in First Appeal, on 6-9-1950. (A certified copy of that decree was duly registered). There was a Second Appeal to the High Court, but that was dismissed in limine on 25-6-1951. The decree holder filed a petition for execution on 17-1-1955 i.e more than three years after the dismissal of the S.A The executing court and the lower appellate court held that the E.P was barred, but this court took a different view of the matter. Under Article 182 of the Limitation Act of 1908, execution had to be taken out within three years where a certified copy of the decree was not registered; but where it was registered, the time allowed was six years. If what was executable in the case was the decree in the A.S made on 6-9-50, the E.P was within time, as the decree had been registered. If on the other hand, what was executable was the decree in the S.A made on 25-6-51 time had already run out before the filing of the E.P, as that decree had not been registered. This is what M.S Menoo J. said, reversing the view concurrently taken by the two courts below:—

“A right of appeal or second appeal is not a natural or inherent right; it has to be conferred expressly by statutory provisions in that behalf and is circumscribed and controlled by the terms of those provisions. It is clear from Ss. 100 and 101 that no second appeal is competent except on the grounds specified in S. 100, and if the High Court refused to admit a second appeal on the ground that the requisite grounds do not exist, no question of a merger of the decree of the first appellate court in a decree of the High Court can arise for consideration. It will be a curious result indeed if the period of limitation available to the appellant has to be considered as curtailed by a second appeal of which he had no notice and which was dismissed as incompetent when it came up for admission”.

16. If a right of appeal or second appeal is one created by statute only, what is to be examined for evaluating the nature of disposal of such an appeal is primarily the concerned statutory provision itself. And on examining it, Menoo J. had no hesitation to hold that the rejection of a second appeal under S. 101 could not amount to an adjudication and a decree, leading to a merger of decrees. The ““curious result” of curtailing a party's rights under the Limitation Act then in force, if the doctrine of merger was invoked in such cases, was also adverted to, with the further clear pronouncement that

“the decree to be executed in such a case will continue to be the decree of the first appellate court”.

17. Before considering the decision in Chandrika Amma's case (1984 KLT. 677 : 1984 K.L.J 525) where another Division Bench of this Court expressed the view that the order of a Subordinate Court will get merged in the order of the High Court dismissing in limine a revision filed against the former, it is necessary to refer to at least three other cases. The first is the decision of the Supreme Court in Sankar v. Krishnaji ((1969) 2 SCC 74 : AIR. 1970 SC. 1) where their Lordships held (following the view of the Privy Council that the revisional jurisdiction “is part and parcel of the appellate Jurisdiction of the High Court”) that the order passed by a court subordinate to the High Court will get merged in the High Court's order passed in exercise of power under S. 115 CPC. What was said was this:—

“If the revisional jurisdiction is invoked and both the parties are heard and an order is made, the question is whether the order of the Subordinate Court has become merged in the order of the High Court. It it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings under Articles 226 and 227 of the Constitution”.

18. Clearly, their lordships were for invoking the doctrine of merger only in cases where “both the parties are heard and an order is made”.

19. The second decision to be noticed is the one reported in Kandkamma v. Shasankaran Nair (1976 KLT. 911) where the question was whether the period of one month provided for in S. 11(2)(c) of the Kerala Buildings (Lease & Rent Control) Act was to be reckoned from the date of the decision rendered by the District Court under S. 20 of that Act, or from the time a revision against that decision was disposed of by the High Court in exercise of power under S. 115 CPC. Janaki Annua J. invoked the doctrine of merger, and took the view that the relevant point of time Swabs the date on which the revision involved in that case (CRP. 1418/74) was dismissed.

20. But when the identical question came up later before Paripoornan J. in Rukkiya v. Aboobacker Koya (1984 KLT. 364), his lordship held that merger would take place only when the revision under S. 115 is disposed of after notice to the other side, and not when it is dismissed in limine. After referring to the Supreme Court decision in Sankar's case ((1969) 2 SCC 74 : AIR. 1970 SC. 1) where emphasis had been placed on bearing the other side, the learned Judge turned to Kanakamma (1976 KLT. 911) and said:—

“In Kanakamma's case the scope of the revisional order considered and relied on (CRP. 1418/74) was passed on merit and after notice to the opposite parties, and bearing them. That was not a case where the revision was rejected in limine”.

21. Reverting now to Candrika Amma v. Mohammed (1984 KLT 677 : 1984 KLJ 525) the question there also was about merger, following the dis missal of a revision under S. 115 CPC, and the effect of such a dismissal in the matter of extending time for the purposes of S. II (2)(c) of the Rent Control Act. Their lordships of the Division Bench disagreed with the view of Paripoornan J, in Rukkiya (1984 KLT 364) and held that merger would definitely take place even when a revision is dismissed in limine. Referring to Kanakamma and the manner in which it was distinguished in Rukkiya, their lordships said:—

“In Kanakamma's case it is not clear whether the Civil Revision Petition under S. 115 CPC. was dismissed in limine or dismissed after hearing the opposits party also. The report does not contain the name of the counsel for the respondent”.

22. It is true that the report in Kanakamma (1976 KLT. 911) does not show the name of the counsel for the respondent; but with great respect, and in all humility, I should say that the above approach overlooks two aspects. The first is that the decision in Kanakamma was about the effect of the dismissal of CRP. 1418/74: and what was held was that the revisional order of the District Court under S. 20 of the Rent Control Act had got itself merged in the decision in CRP. 1418/74. Therefore the real question was whether CRP. 1418/74 was a case of dismissal in limine, or whether it was one decided after notice to the other side. Whether the CRP. in which Kanakamma (CRP. No. 2896/75) came to be decided was one where notice had been issued to the respondent was not relevant at all in the context. And the second aspect is that the records of this Court will show that even in Kanakamma, notice had gone to the other side and counsel for the respondent was beard.

23. Another reason which seems to have weighed with their lordships in Chandrika Amma was that the Andhra Pradesh, Punjab, Madras, Calcutta and Allahabad High Courts had all held that the dismissal of an appeal under Order 41 Rule 11(1) would end in a decree in which the decree of the lower court would get merged. The decisions cited, however, were all decisions rendered before the amendment of the CPC. by Act 104/76. And it is not as if even in those courts in those days, there was no conflict of views about the consequence of an appeal being not entertained or dismissed in limine. The Full Bench decision of Calcutta in Mamuda Khateen (AIR. 1976 Cal. 415) refers to the different views which were being expressed by different benches of that court, regarding the result of dismissing an appeal for delay. And the Full Bench held, even without the aid of Order XLI Rule 3A introduced later, that such a dismissal would not result in a decree. Similar conflicts of view were also noticed by the Full Bench of the Madras High Court, in In re N. Kayambu Pillai (AIR. 1941 Mad. 836), where the Bench held that an order dismissing an appeal for non-payment of court-fee and for failure to furnish security under Order 41 Rule 10 would not amount to a decree. Leacb C.J who spoke for the Full Bench said that what the court must be taken to have said in such cases is that “you shall not proceed unless you pay the proper court-fee as you are no longer a pauper’’, and that that was something entirely different from determining the rights of parties with regard to matters in dispute in the cause, so as to be treated as a ‘decree’ as defined in S 2(2). As for the Andhra Pradesh High Court, the decision in S.V Rattamma v. R.C Narasareddi, (1981) I An. W.R 306 shows that in its opinion also, dismissal of an appeal, pursuant to the dismissal of an application for permission to prefer an appeal as an indigent person, cannot amount to a “decree”. I am referring only to some of the instances where conflicting views have been taken, in order to point out how unsafe it is to proceed on the basis of one or two of them, without even referring to the statutory provisions which are now in force.

24. In Ramanna v. Sreeramulu (AIR 1958 A.P 768) Subba Rao C.J (as he than was) had said:—

“The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him, but it cannot efface the legal effect of a valid decree made by the appellate court”.

25. The above passage is seen quoted with approval in Chandrika Amma (1984 KLT. 677) apparently because of the eminence of the Judge concerned, even if there appears to be something inelegant in suggesting that a “valid decree”, which after all determines the rights of parties, will not bind one of them and on certain circumstances. But it is interesting to notice that Gajendragadkar J. (as be then was), speaking for a Division Bench of the Bombay High Court, had observed as follows, in Phaltan Bank v. Baburao (AIR 1954 Bom. 43):

“If the legislature had intended that an order rejecting a memorandum of appeal should be included in the decree, it would have been so easy for the legislature to make appropriate additions in the definition of the decree itself. It seems to us that it would not be open to the court to add to this definition any other kinds of adjudication however similar they may appear to be to the adjudication which are expressly included in the definition,”

26. The Bench had also added:—

“It would thus be noticed that the authority of the Privy Council is in support of the view that if an order has been made by the court of appeal rejecting the appeal on the ground that proper eourt-fees have not been paid, the appeal virtually has not come before the court of appeal for disposal on merits, but it has faded out for the reason that the preliminary steps to present an appeal before the appellate court properly and effectively were not taken by the appellant”.

27. Cannot the same thing be said about the in limine dismissal of a second appeal for want of substantial questions of law? Where the “preliminary steps” for “properly and effectively” presenting a second appeal under S. 100 (viz. discovering and raising substantial questions of law) are not taken by an appellant, will it not be possible to say that the appeal “has not come before the court”, but has “faded out”? And if contribution from another eminent Judge is necessary, it may be noted that R.N Misra J (as he then was) had stated, in Padmalaya v. Syam Sunder (AIR 1980 Orissa 1) that:

“Judicial view seems to be almost unanimous that dismissal of a proceeding in the higher forum at the stage of admission does not have the effect of merger of the decision of the subordinate forum with that of the higher forum”.

28. The discussion on this aspect of the case can be closed after referring to two or three decisions which have taken note of some of the amendments made in the C.P.C by the 1976 Act.

29. In Chitlu v. Mathuraralal (AIR 1981 M.P 13) the court examined the scope of Rule 3A of Order XLI (dealing with appeals filed after the period of limitation) and said:—

“The appeal cannot be heard even on the question of admission much lesson merits. In effect there is no appeal before the court unless the delay is condoned. This conclusion gets buttressed from the expression “the appeal is proposed to be filed”. The use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the court”.

30. Where the application for excusing delay is rejected, such rejection cannot certainly amount to a decree (because the rights or parties are not adjudicated at all). And the order rejecting the appeal as a consequence is merely an incidental order, and not a decree.

31. In Bhanwarilal Bhoid v. P. Neelakantan (AIR. 1965 Orissa 102) a Division Bench of the Orissa High Court had held, following the view of the Calcutta High Court in Rakhel v. Asathosh, (1913) 17 Cal, W.N 807, that the dismissal of an appeal as barred by limitation would amount to a decree. The Calcutta decision was subsequently over-ruled by the Full Bench, in Mamuda Khateen (AIR. 1976 Cal. 415), already adverted to. And the Orissa view in Bhanwarilal has also been over-ruled by a Full Bench of that Court, in Ainthu v. Sitaram (AIR. 1984 Orissa 230). This Full Bench decision has taken note of both Rules 3A and 11(4) of Order XLI, introduced by Act 104/76. The theory of equating rejection of an appeal, to rejection of a plaint in the deeming part of S. 2(2) of the Code, so as to elevate the former to the status of a decree by reason of S. 107(2), did not find favour with their lordships. Said the Full Bench:—

“Because S. 107(2) of the Code provides that subject to the provisions made in subsection (1) of S. 107, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on the courts of original jurisdiction in respect of suits instituted therein and Order 7 Rale 11, provides for rejection of plaint by any original court which, as provided in S. 2(2) of the Code, would be construed to be a decree, it would not follow, in spite of the specific provisions made in Order 41 of the Code with regard to the procedure to be adopted in respect of an appeal accompanied by an application for condonation of delay under S. 5 of the Limitaiion Act and after disposal of the application, for its registration and hearing on the question of admission, that the rejection of a memorandum of appeal would also come under the our-view of Order 7, Rule 11 of the Code, Powers and jurisdiction conferred on the appellate court under S. 107(2) are not to be equated with the procedures specifically laid down separately in respect of admission of an appeal under Order 41 of the Code and its determination”.

32. In Kunhiraman v. Rossy (1979 KLT 718) G. Viswanatha Iyer J. is seen to have taken the view that when a delay petition is dismissed and the appeal is consequently dismissed as barred, the remedy is to file an appeal against the decree “if that is allowed by law”, and take a ground in that appeal that the lower court was wrong in not excusing the delay. My familarity with the provisions of the CPC. is nothing when compared with that of his lordship; still, Ijshould point out, with respect, that his lordship's attention does not appear to have been drawn to the oewly introduced provisions of Rule 3A of Order 41 characterising a delayed appeal only as one “proposed to be filed”. Kunhiraman no doubt referred to Rule (1A) of, Order XLIIT, also introduced by Act 104/76, but it appears to me that it is intended to operate in an altogether different area. Sub-rule (1) of Rule 1A of Order XLIII reads:—

“1A. Right to challenge non-appealable orders. In appeal against decree. (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against sucb party and a decree is drawn up, sucb party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced”.

33. The rule applies only to cases, where judgments are pronounced and decrees are drawn up following the making of an “order” by the court “under this Code, against a party” i.e to cases like those arising under Order 41 Rule 11(1) where a subordinate court dismisses an appeal, and a judgment is delivered and a decree drawn up, as required by sub-rule (4) of Rule 11. It does not apply to a case under Rule 3A where the delay petition is dismissed and the appeal does not reach the stage of Rule 11(1), to be followed by a judgment and a decree.

34. In my opinion, the facts of the case on hand are similar to those in Chakku Varke'y (AIR 1962 Kerala 104) and the question of law involved is also the same. The question in Chandrifca Amnta (1984 KLT. 677) was, to some extent at least, different. Following the former, therefore, I hold that the decree executable in this case was the one in A.S 52/79, and that it had continued to exist as an enforceable decree notwithstanding the dismissal of S.A 584/82.

35. To uphold the petitioner's contention on the basis of Chandrika Amma would certaily be to give a nervous shock to the decree-holder herein who had reasons to rely on Chakkuvarkey, and wait. Referring to Donoughe v. Stevenson, (1932) A.C 562 where the manufacturer of a standardised product was held liable to potential consumers, Friedman(1) asks:—

“where is the difference between the physical injury caused to a consumer of ginger beer and the economic injury suffered by reliance on the report of a qualified accountant on the prospects of investment in a company, or the nervous shock suffered as a result of a careless statement made in a newspaper report about an accident alleged to have killed the plaintiff's relative?”

36. Let not similar questions be asked, as far as possible, about decisions of this Court also.

37. It is then contended that even when second appeals are dismissed in limine in this Court, there is a practice of drawing up decrees, and that it should therefore be taken that such decrees displace the decrees of the lower appellate courts. If there is still such a practice, despite the introduction of sub-rule (4) in Rule II of Order 41, I think it can be stopped. That apart, the mere drawing up of something and calling it a decree does not really make it a decree, if in law it is outside the true scope of S. 2(2). The decision of the Supreme. Court in Madan Naik v. Hansubala Bai ((1983) 3 SCC 15 : AIR. 1983 SC. 676) is instructive in the context. The next contention of Mr. Shenoi for the petitioner puts his client's case in the reverse gear; it is that what was really executable was the decree passed by the trial court on 27-11-1978, and that by the time E.P 133/82 came to be filed on 6,-2-1982, execution had become barred. This contention is based on Art. 135 of the Limitation Act providing for 3 years’ time for “enforcement” of a decree granting a mandatory injunction, commencing from the date of the decree (or where a date is fixed for performance, such date). Under Article 136 the period of limitation for execution of other decrees is 12 years, time starting to run when the decree becomes “enforceable”. Enforceability is the foundation in both cases, and where the decree in a suit merges with the decree in an appeal, what is enforcable is the appellate decree (see Kamalamma v. Trivandrum Permanent Bank (1986 KLT 1181). The enforceable decree here is the one in A.S 52/79, and if that is so, E.P should be considered to have been filed in time. Even otherwise, there was a stay of the execution of the decree in the suit, from 29-3-79. as noticed earlier; and excluding the time permissible under S. 15 of the Limitation Act also, it has to be concluded that E.P 133 was filed within the period of limitation.

38. The last and the most desperate contention of the petitioner is that he had raised a kudikidappu claim in the objections to the E.P and that the executing court was bound to refer this claim to the Land Tribunal, in view of S. 125 of Act 1/64. As already seen, the suit was of the year 1976 and the claim could have been raised in the suit itself; and for that reason alone, raising of such a claim at the execution stage was barred by rules of constructive res judicata. The records also show that the petitioner had moved E.A 767/82 on 23-9-82 claiming kudikidappu right and seeking reference to the Land Tribunal, and that the said E.A was dismissed by the executing court on 4-12-82. That means the principles of res judicata were also directly attracted.

39. There is thus no merit in the revision, and it is accordingly dismissed with costs.

40. Dismissed.