Writ petition challenging executing-court orders rejecting a judgment debtor's objection that a 2011 execution application against a 1999 money decree was time-barred. Applying Article 136 Limitation Act and doctrine of merger, the court held execution was within limitation and dismissed the petition.
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2024:CGHC:45384
AVINASH SHARMA
Digitally signed by AVINASH SHARMA Date: 2024.11.21 17:16:27 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
NAFR
WP227 No. 354 of 2023
... Petitioner/Judgment Debtor No.1.
versus
1 - Balkrishna Dani S/o Shri Ramgulam Dani, Proprietor, Mukesh Paper Agencies, R.S. Shukla Road, Gol Bazaar, Raipur (C.G.) (Decree Holder)
2 - Rakesh Kumar Gupta S/o Shri S. L. Gupta Aged About 38 Years Proprietor, R.K. Industries, 115, Lite Industrial Area, Bhilai, Dist. Durg (C.G.) (Judgment Debtors No. 2).
3 - S. L. Gupta Aged About 58 Years, R.K. Industries, 115, Lite Industrial Area, Bhilai, Dist. Durg (C.G.) (Judgment Debtors No. 4).
... Respondents
For Petitioner : Shri Goutam Khetrapal, Advocate. For Respondent No.1 : Shri Kabir Kalwani appears on behalf of Shri Manoj Paranjpe, Advocate.
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Hon'ble Shri Justice Deepak Kumar Tiwari
Order On Board
20.11.2024
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and one of the judgment debtors also raised similar nature of objection which was dismissed vide order dated 03.03.2023. Hence this petition.
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within limitation. Placing reliance in the matter of Shaifuddin (Dead) Thr. Lrs. v. Kanhaiya Lal (Dead) Thr. Lrs. and Others {2023 SCC OnLine SC 478, learned counsel would submit that Article 136 of the Limitation Act deals with the applications for execution of decrees and orders and provides that the execution proceeding has to be initiated within 12 years from the date when the decree or orders 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. Learned counsel further placed reliance in the matter of Surinder Pal Soni v. Sohan Lal (Dead) THROUGH LEGAL REPRESENTATIVES {(2020) 15 SCC 771} to submit that doctrine of merger applies to a situation when the limitation for filing of an execution application is to be computed.
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relevant portion of the observation made in the matter of Surinder Pal
Soni ( supra ).
“11. Upon the decision of the Appellate Court, there was a merger of the judgment of the Trial Court with the decision which was rendered in appeal. Consequent upon the passing of the decree of an Appellate Court, the decree of the Trial Court merges with that of the Appellate Court. The doctrine of merger is founded on the rationale that there cannot be more than one operative decree at a given point in time. The doctrine of merger applies irrespective of whether the Appellate Court has affirmed, modified or reversed the decree of the Trial Court. In Kunhayammed v State of Kerala [(2000) 6 SCC 359, para 12], while explaining the doctrine of merger, this Court held thus:
“12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the
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content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.”
12. Further, while explaining the position that emerges on the grant of special leave to appeal by this Court, it was observed: {Kunhayammed (supra), para 41}
“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...”
13. This position of law has been recently affirmed and reiterated by a three judge Bench decision of this Court in Khoday Distilleries Ltd v Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376.
14. The decision in Kunhayammed (supra) was followed by a three judge Bench decision of this Court in Chandi Prasad (supra)1 , which held thus:
“23. The doctrine of merger is based on the principles of propriety in the hierarchy of 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.
1 Chandi Prasad Vs. Jagdish Prasad, (2004) 8 SCC 724
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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...”
15. More recently, the decision in Chandi Prasad (supra) was followed by a two judge Bench of this Court in Shanthi v T D Vishwanathan2 rendered on 24 October 2018 in the following terms :
“7. ...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.”
2 (2019) 11 SCC 419
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10.In the result, instant petition fails and is hereby dismissed.
Sd/-
(Deepak Kumar Tiwari) Judge
Avinash
2 issues framed by the court
Whether the execution application filed on 28.01.2011 against a decree dated 06.01.1999 fell within the 12-year limitation under Article 136 of the Limitation Act.
Whether the objections raised by the judgment debtor on limitation were correctly rejected by the executing court.
Colour shows how this judgement treated each authority
Surinder Pal Soni v. Sohan Lal (Dead) Through Legal RepresentativesRelied on¶8
{(2020) 15 SCC 771} · Who else cites this
3 provisions across 3 enactments
R. K. Industries through its proprietor Nand Kishore Gupta
Balkrishna Dani
Rakesh Kumar Gupta
S. L. Gupta
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
