Shanthi v. T.D. Viswanathan Others

(Prayer: Revision filed against the order dated 01.11.2006, passed by the IX Asst. Judge, City Civil Court, Chennai passed in E.A.No.3570/2006 in E.P.No.249/2006 in O.S.No.649 /1977.)

This revision is directed against the Order of dismissal of Section 47 Petition in E.A.No.3570/2006 in E.P.No.249/2006 in O.S.No.649/1977. 8th Defendant in O.S.No.649/1977 is the Revision Petitioner.

2. Relevant facts for disposal of this Revision Petition are as follows:-

2.1. Plaintiffs/Subramaniam Mudaliar and Rajavelu Mudaliar have filed the suit O.S.No.649/1977 against the Petitioner who is the 8th Defendant and seven others, for delivery of possession of the premises bearing D.No.225, Sengunthar Street, Velacheri, Saidapet Taluk and also for arrears of rent and other reliefs. The said suit was decreed on 14.08.2001. Against the said Judgment and Decree, the Defendants preferred Appeal in A.S.No.14/1982 before the District Court, Chengalpat and the said appeal was dismissed on 22.11.1982. Second Appeal preferred in S.A.No.1087/1983 was also dismissed by the High Court on 30.12.2003.

2.2. At the time of filing the suit, the suit property was within the jurisdiction of District Munsif Court, Poonamallee. Subsequently, the suit property came within the territorial jurisdiction of City Civil Court, Chennai. On application filed by the Decree-Holders in E.A.No.240/2004, the Decree in O.S.No.649/1977 was transmitted to City Civil Court, Chennai by the Order dated 07.09.2004. E.P.No.249/ 2006 was filed for execution of the Decree.

2.3. In the said E.P., the Petitioner/D-8 filed E.A.No.3570/2006 under Section 47 CPC challenging the jurisdiction of the Court, disputing the identity of suit property and raising the plea of limitation. In the said application, son of the Petitioner viz., Hariharan was examined as PW-1 and the Power of Attorney of the Legal Representatives of Decree-Holders was examined as RW-1. Holding that the execution Petition is well within the period of limitation and negativing the contention raised regarding the identity of the suit property, the Execution Court held that there was no discrepancy in the identity of the property and dismissed the application, which is challenged in this Revision Petition.

3. Reiterating the points raised in the Execution Court, the learned Counsel for the Revision Petitioner interalia raised the following contention:-

"Decree was passed on 04.08.1981 and Execution Petition filed in 2006 is time barred. Reliance placed upon 2006 (2) CCC 257;

"City Civil Court has no jurisdiction to execute the Decree since the Order of transmitting the Decree is not in Order and the transferee Court ought to have directed the Decree-Holder to get proper certificate from District Munsif Court, Poonamallee;

"Evidence of PW-1 was not properly appreciated and the Execution Court has not properly considered the points raised regarding the discrepancy of the schedule property.

4. Drawing the attention of the Court to the filing of the second appeal S.A.No.1087/1993, which was dismissed on 30.12.2003, the learned Counsel for the Respondents contended that Decree of trial Court merged with the Decree passed in the second appeal and hence Execution Petition filed in 2006 is maintainable. For the proposition that when the appellate forum is invoked and appeal is entertained, for all intent and purport the suit continues, the learned Counsel placed reliance upon 2004 (8) SCC 724.

5. The objection regarding the jurisdiction of the City Civil Court hardly merits acceptance. At the time when suit O.S.No.649/1977 was filed, the suit property in Velachery was within the jurisdiction of District Munsif Court, Poonamallee. With the extension of limits of Chennai Corporation, the property in Velachery limits fell within the jurisdiction of City Civil Court, Chennai. For the execution of the Decree by competent Court, on application made by the Decree-Holders in E.A.NO.240/2004, Decree was transmitted to the City Civil Court, Chennai. Section 42 CPC expressly gives the Court executing the Decree sent to it; the same powers in executing such Decree, as if it had been passed by itself. The expression appearing in "executing such Decree" means, "powers exercised in actually enforcing the Decree".

6. While transmitting the Decree, under Or.21 R.6 CPC, "the Court sending the Decree for execution shall send (a)copy of the Decree; (b) a certificate sending forth the satisfaction of the Decree obtained by execution within the jurisdiction of the Court; and where there is any part satisfaction, (c)copy of any order for execution of the Decree and certificate to that effect. While transmitting the Decree along with the certificate, in the certificate, mistakenly it is stated as "the copy of this Order be sent to the District Munsif, Poonamallee". Laying stress upon the certificate, onbehalf of the Petitioner, it was contended that certificate was not in accordance with the provisions, which renders the Decree inexecutable. No doubt in the certificate, it is mistakenly stated as "copy of this Order be sent to the District Munsif, Poonamalee". But the certificate is rightly addressed to the Registrar, City Civil Court, Chennai. The mistake in the certificate is only a clerical mistake and the Revision Petitioner cannot take advantage of the same. That clerical mistake has neither caused prejudice to the Petitioner nor renders the Decree inexecutable.

7. Objection regarding the identity of the schedule property:-

In O.S.No.649/1977, the suit property is described as D.No.225, Sengunthar Street, Velacheri. According to the Defendants, they are residing at D.No.224, Gandhi Road, Velacheri and there is discrepancy in the description of the schedule property, which renders the Decree inexecutable. The learned Counsel for the Revision Petitioner has submitted that without adverting to the evidence and discrepancy in the description of the suit property, the Execution Court erroneously held that D.No.224 Gandhi Street, Velacheri and D.No.225, Sengunthar Street, Velacheri are one and the same. During the pendency of the appeal, Sengunthar Street was renamed as Gandhi Road and new D.No.224 was assigned. In the suit stage while filing the Written Statement, the address of the Defendants was No.225, Sengunthar Street. That there was change in the name of the road and door number is evident from the fact that for the first time in CMP No.7431/1999 in S.A.No.1087/1983 [application filed to condone the delay in filing the application for restoration of second appeal], the Defendants have stated their residential address as 224, Gandhi Road, Velacheri.

8. The Petitioner's son Hariharan was examined as PW-1 who has stated that his mother [D-8] and family are permanently residing at D.No.224, Gandhi Road, Velacheri. In O.S.No.649/ 1977, the residential address has been stated as D.No.225, Sengunthar Street. Evidence of PW-1 and the records lead to inevitable conclusion that D.No.224, Gandhi Road and D.NO.225, Sengunthar Street are one and the same. The finding of the Execution Court that there is no discrepancy in the suit property is in proper appreciation of evidence and records.

9. Disapproving the conduct of the Judgment-Debtors in raising dispute regarding the description of the property in the execution stage, in 2003 (8) SCC 289 [Ravinder Kumar Vs.Ashok Kumar], the Supreme Court has held thus:-

"... Therefore raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see through such diabolical plans of the Judgment-Debtors to deny the Decree-Holders the fruits of the Decree obtained by them. ..."

10. The main contention of the Petitioner is that the Execution Petition filed in 2006 is barred by limitation under Article 136 of the Limitation Act. The learned Counsel for the Petitioner has submitted that the Decree was passed on 14.08.1981 and the Execution Petition ought to have been filed within 12 years from 14.08.1981, on which date the Decree has become executable. As noted earlier, A.S.No.14/ 1982 was dismissed on 22.11.1982 and S.A.No.1087/1993 was dismissed by the High Court on 30.12.2003. The contention of the Petitioner is that when there was no stay by the Appellate Courts, Decree for declaration and possession becomes executable from the date it was passed and the limitation has started running from 14.08.1981. The learned Counsel placed reliance upon 2006 (2) CCC 257 [Ram Bachan Rai & Others Vs.Ram Udar Rai & others].

11. The main question is, when would the period of limitation for the execution of the Decree passed in the suit commence? Article 136 of the Limitation Act reads as under: -

Description of application

Period of limitation

Time from which period begins to run

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, Provide that an application for the enforcement or execution of a Decree granting a perpetual injunction shall not be subject to any period of limitation.

12. Though the Decree was passed on 04.08.1981, the second appeal was dismissed only on 30.12.2003. The Decree of the Court of first instance merged with that of the High Court passed on 30.12.2003. The execution Petition filed in 2006 is well within the period of limitation. Holding that when the appellate forum passed a Decree, Decree of the trial Court merges with the Decree of the Appellate Court, in 2004 (8) SCC 724 [Chandi Prasad and Others Vs.Jagdish Prasad and Others], the Supreme Court has held as follows:-

"21. It is axiomatic true that when a Judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the Judgment of the lower Court and only the Judgment of the High Court would be treated as final [U.J.S.Chopra Vs. State of Bombay], AIR 1955 SC 633.

22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues.

23. The doctrine of merger is based on the principles of propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an Order or reversal, modification of 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. [V.M.Salgoacar and Bros.(P) Ltd. AIR 2000 SC 1623].

13. The concept of doctrine of merger and the right of review came up for consideration before the Supreme Court in Kunhayammed Vs. State of Kerala [2000 (6) SCC 359] wherein the Supreme Court interalia held that when a special leave petition is disposed of by a speaking Order, the doctrine of merger shall apply. The observations of the Supreme Court are as under: -

"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. 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. ...

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.

14. The main contention of the Petitioner is that when there was no stay of operation of the Decree of the trial Court, the Decree became enforceable, even in 1981 and the execution Petition filed in 2006 is time barred. In the decision 2006 (2) CCC 257 [Ram Bachan Rai & Others Vs.Ram Udar Rai & others], relied upon by the Petitioner, exparte Decree for declaration and possession was passed on 03.05.1976. The Defendant filed application to set aside the exparte Decree which was dismissed on 14.07.1978. The appeal and the revision preferred against that Order was also dismissed. At no stage, stay was granted by any Court. Execution application was filed on 05.04.1991. In the factual situation obtaining thereon, the Supreme Court has held

"that the Decree for declaration and possession becomes executable from the date it is passed and limitation cannot be postponed to any appeal or revision, where no stay at any stage was grated by any Court"

. In the said decision, there was no regular appeal preferred against the Judgment and Decree. Only an I.A. was filed to set aside the exparte Decree, against which appeal and revision were preferred. The said decision has no application to this case. In this case, regular first appeal and second appeal were preferred against the Judgment and Decree in O.S.No.649/1977. The lower Court Decree merged with the Decree passed in the second appeal.

15. In Ratansingh Vs. Vijay Singh [2001 (1) SCC 469], possession of a property was obtained in 14.12.19970. The first appeal there against was dismissed on 01.08.1973. Execution Petition was filed on 24.03.1988 i.e. beyond the time fixed by the Act. The second appeal preferred by the Judgment-Debtor was rejected having regard to the fact that the delay in filing the said appeal was not properly explained.

16. Upon analysis when a Decree or Order becomes enforceable vis- -vis the definition of "Decree" in Section 2(2) of the Code, the Supreme Court observed that when a dismissal of an appeal takes place on the ground of its being time-barred, no Decree is passed. Admittedly, upon dismissal of the second appeal, the High Court has drawn up a formal Decree on 30.12.2003.

17. When the Appellate Court passed the Decree, the Decree of the trial Court merged with the Decree of the Appellate Court irrespective of the fact as to whether the Appellate Court has affirmed, modified or reversed the Decree passed by the trial Court. Since the Second Appeal S.A.No.1087/1993 was decreed and Order was passed on merits, the Decree of the trial Court merged with the second appeal. Hence the Decree becomes enforceable for execution thereof, within the meaning of Article 136 of the Limitation Act only from the date of disposal of the Second Appeal i.e. 30.12.2003 and the Execution Court has rightly held that the Execution Petition filed in 2006 is well within the period of limitation.

18. Decree-Holders T.D.Subramaniam Mudaliar and the T.D.Rajavel Mudaliar have died. Their legal heirs are impleaded as Petitioners 3 to 12. Petitioners 4 to 12 are represented by Power of Attorney T.D.Viswanathan. In the cause title of Execution Petition decided as,

"Decree-Holders 1 & 2 and 4 to 12 are represented by their Power of Attorney Mr.T.D.Viswanathan, Old No.4, New No.7, Pillayar Koil Street, Saidapet, Chennai-15."

19. Plea has been taken that after the death of Decree-Holders 1 and 2, the power given to Viswanathan is terminated, and the erroneous cause title in the Execution Petition renders the Decree inexecutable. Adverting to this objection, the execution Court has held,

"that the Petitioners 5 to 7 and 9 to 12 have given Power of Attorney to the third Petitioner Viswanthan"

. Under Or.3 R.2 CPC, the Court has also granted permission for the legal heirs of Decree-Holders to conduct the proceedings through their Power of Attorney T.D.Viswanthan. The mistake in the Cause Title is too trivial to affect the executability of the Decree.

20. The Execution Court cannot go behind the Decree, unless it is shown that it is passed by the Court having lack of jurisdiction. The Execution Court is bound to execute the Decree as it stands. Dealing with the scope of Section 47 CPC, in AIR 2001 SC 2552 = 2001 (6) SCC 534 [Dhurandar Prasad Singh Vs. Jai Prakash University] the Supreme Court has held thus:

"Under Section 47 all questions arising between the parties to the suit in which the Decree was passed or their representatives relating to the execution, discharge or satisfaction of Decree have got to be determined by the Court executing the Decree and not by a separate suit. The powers of Court under Section 47 are quite different and much narrower than its powers of appeal revision or review. The exercise of powers under Section 47 is microscopic and lies in a very narrow inspection hole. The executing Court can allow objection under Section 47 to the executability of the Decree if it is found that the same is void ab inito and nullity, apart from the ground that Decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a Decree inexecutable after its passing. See also 2002 (9) SCC 28 [Government of Orissa Vs. Ashok Transport Agency].

21. The matter was hotly contested and fought up to the level of High Court and the Decree passed by the trial Court was confirmed by the High Court, the Petitioner has not made out any substantial ground showing that the Decree is not capable of execution. The Executing Court rightly dismissed the application filed under Section 47 CPC. The impugned Order does not suffer from any serious infirmity or jurisdictional error calling for interference. This revision is devoid of merits and is bound to fail.

22. In the result, the Order made in E.A.No.3570/2006 in E.P.No.249/2006 is confirmed and this Revision Petition is dismissed. No costs. Consequently, CMP No.1/2006 is also dismissed.