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Shanthi v. T.D. Vishwanathan And Another
Factual and Procedural Background
The respondent–plaintiffs instituted O.S. No. 649 of 1977 seeking recovery of possession of a residential house and arrears of rent from the appellant–defendant, who was their tenant. The trial court decreed the suit on 14-8-1981. Both the first appellate court and the High Court, in second appeal, affirmed that decree. After the High Court dismissed the second appeal on 30-12-2003, the decree-holders filed E.P. No. 249 of 2006 (with connected E.A. No. 3570 of 2006) to execute the decree. The executing court rejected the judgment-debtor’s objection that the petition was time-barred. The High Court, by judgment dated 22-1-2007 in CRP (NPD) No. 1829 of 2006, upheld that order. The present appeal challenges that decision.
Legal Issues Presented
- Whether the execution petition filed in July 2006 was barred by limitation under Article 136 of the Limitation Act, 1963, because it was not instituted within twelve years from the trial court’s decree dated 14-8-1981.
Arguments of the Parties
Appellant's Arguments
- The decree-holders were required to file the execution petition within 12 years of the trial court’s decree, without waiting for the appellate decisions.
- No interim stay orders were granted during the appeals; hence there was no impediment to earlier execution.
Respondent-Plaintiffs' Arguments
- The decrees of the trial court and first appellate court merged into the High Court’s decree; limitation should therefore be computed from 30-12-2003, the date of the High Court judgment.
- A stay operated in favour of the judgment-debtor during the pendency of the appeals, and the judgment-debtor continued in possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandi Prasad v. Jagdish Prasad (2004) 8 SCC 724 | Article 136 Limitation Act—an execution can be filed when the decree becomes enforceable; doctrine of merger operates through appellate stages. | The Court relied on this decision to hold that, after successive affirmations, the operative decree is that of the High Court, and limitation runs from that date. |
Court's Reasoning and Analysis
The Court noted that the execution petition was filed within 12 years of the High Court’s decree dated 30-12-2003, a fact not disputed by the appellant. Referring to Chandi Prasad v. Jagdish Prasad, the Court reiterated that:
- A decree is enforceable irrespective of the level of court that passes it, but when an appeal is entertained, the suit continues and the doctrine of merger applies.
- There can be only one operative decree at any given time; once the appellate court decides, earlier decrees merge into the appellate decree.
Consequently, limitation under Article 136 began to run from the date of the High Court’s decree (30-12-2003), rendering the execution petition filed in July 2006 timely. The appellate argument that limitation should be reckoned from the trial court’s decree was therefore rejected.
Holding and Implications
APPEAL DISMISSED. The execution petition filed by the decree-holders is within limitation because the operative decree is that of the High Court dated 30-12-2003.
Implications: The decision confirms the settled position that, owing to the doctrine of merger, limitation for execution commences from the final appellate decree when earlier decrees are successively affirmed. The ruling primarily affects the parties to this litigation and does not set new precedent, relying instead on existing Supreme Court authority.
Order
1. This appeal is directed against the judgment dated 22-1-2007, passed by the learned Single Judge of the High Court of Judicature at Madras in Shanthi v. T.D. Viswanathan CRP (NPD) No. 1829 of 2006. By the impugned judgment, the High Court while dismissing the revision petition has confirmed the orders of the executing court dated 1-11-2006 in EA No. 3570 of 2006 in EP No. 249 of 2006 in OS No. 649 of 1977.
2. The suit was filed by the respondent-plaintiffs for recovery of possession and arrears of rent against the appellant-defendant herein.
3. The appellant was a tenant of the respondents. The property in question is a residential house. The trial court, the first appellate court and the High Court have concurrently concluded that the plaintiff is entitled to get possession of the suit property and arrears of rent. Thus, the suit was decreed against the tenant by such concurring judgments. Thereafter, an execution petition was filed in 2006 for executing the decree.
4. The only question raised by the learned advocate for the appellant in this appeal is that the execution petition filed in the year 2006 is barred by limitation inasmuch as the same was not filed within 12 years from the date of the judgment of the trial court i.e. dated 14-8-1981.
5. In sum and substance, the case of the appellant is that the execution petition ought to have been filed within 12 years from the date of the judgment of the trial court without waiting for the decision of the first appellate court or the second appellate court. He has also submitted that there is no interim order granted by the first appellate court and the second appellate court. There was no hurdle for the respondents to file the execution petition within the prescribed period of limitation after the judgment of the trial court. It is submitted by the decree-holder that the decree of the trial court and the first appellate court have merged in the decree of the High Court passed in second appeal. It is further submitted that the order of stay was operating in favour of the judgment-debtor/debtor during the pendency of the appeals and hence the judgment-debtor continued in possession.
6. It is not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the second appeal on 30-12-2003. The execution petition was filed in July 2006. Thus, undisputedly, the execution petition was within the period of limitation from the date of the judgment of the High Court.
7. The aforementioned question raised by the learned advocate for the appellant is no more res integra, inasmuch as the very question is decided by a three-Judge Bench of this Court, in Chandi Prasad v. Jagdish Prasad (2004) 8 SCC 724, wherein it was observed that in terms of Article 136, Limitation Act, 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) CPC would be enforceable irrespective of whether it is passed by the trial court, the first appellate court or the second appellate court. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the 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.
8. Since the judgment of the trial court was affirmed by the first appellate court and was further affirmed by the second appellate court, the decree passed by the High Court becomes enforceable in view of the doctrine of merger. Hence, in our considered view, the execution petition filed by the respondent-plaintiffs is within time, consequently the appeal fails and stands dismissed.
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