1. The civil revision petition has been filed challenging the order dated 06.06.2024 in EP No.423 of 2023 in OS No.450 of 1999 on the file of the Munsiff Court, Kuthuparamba. The petitioner is the judgment debtor. The suit was filed praying for a mandatory injunction directing the defendants to hand over plaint A, C and D schedule properties to the plaintiffs and restraining the defendants from pretending any possession over the plaint schedule property by a permanent prohibitory injunction. The defendants filed A.S.No.148 of 2009 before the Sub Court, Thalassery, which was dismissed by judgment dated 20.10.2016. The defendants thereafter preferred RSA No.678 of 2017 before this Court, which was dismissed on 23.02.2022 as not pressed. It is admitted that a decree was drawn up by this Court in the Second Appeal. E.P.No.423 of 2023 was filed on 08.08.2023 seeking to execute the decree. The judgment debtors took a contention that the execution petition is barred by limitation. The trial court by order dated 06.06.2024 held that the execution petition is not barred by limitation since the decree of the First Appellate Court has merged with the judgment and decree dated 23.02.2022 in RSA No. 678 of 2017. It is submitted that subsequently delivery has been effected and decree has been satisfied.
2. The counsel for the petitioner contended that the finding of the execution court that there is a merger is legally not sustainable. It is submitted that in a decree for mandatory injunction, the relevant article of the schedule to the Limitation Act which applies is Article 135, which reads as follows:
| Description of suit | Period oflimitation | Time from whichperiod begins to run |
| For the enforcement ofa decree granting a mandatory injunction | Three years | The date of thedecree or where a date is fixed for performance, such date. |
3. The counsel placed reliance on the judgments in Kunhayammed V. State of Kerala (2000 (6) SCC 359), Chandi Prasad V. Jagdish Prasad (2004 (8) SCC 724), Anand Narayan Shukla V. Jagat Dhari (2026 SCC OnLine SC 827), Shanmugavel Nadar V. State of Tamil Nadu (2002 (8) SCC 361), Babu Singh V. Jalandhar Improvement Trust (2026 KHC 7084), Ratansingh V. Vijaysingh and Ors. [(2001) 1 SCC 469], Shanthi V. T.D. Vishwanathan and Another [(2019) 11 SCC 419] and Surinder Pal Soni V. Sohan Lal (D) Thru LR. and Ors. (2019 (9) scale 564) in support of his arguments.
4. The counsel for the respondents submitted that going by Article 135 of the Limitation Act, what is relevant is the date of the decree and not the date on which a decree became enforceable. It is submitted that in the case on hand, the decree in the Second Appeal has been passed on 23.02.2022 and the execution petition has been filed on 08.08.2023 and hence no further enquiry is required in order to hold that the execution petition is maintainable. As regards the contention that there should be a decision on merits, the counsel submitted that the Second Appeal was filed in 2017 and the sole respondent, who is the plaintiff, died pending the Second Appeal and his legal representatives were impleaded by the judgment debtors as additional respondents in the appeal and it was thereafter that a memo was filed expressing their intention not to proceed further with the appeal. It is hence submitted that the conduct tantamounts to accepting the trial and first appellate decree and, the judgment and decree that followed cannot be treated as a judgment which was rendered for non-prosecution as sought to be made out by the counsel for the judgment debtor. It is further submitted that the decisions relied on by the counsel for the judgment debtors are decisions rendered under Article 136 of the Constitution of India and cannot apply to the facts of this case. Yet another argument which was advanced was that even though the suit was laid as one for mandatory injunction, what has been granted is a decree for possession and there is nothing that prevents the decree holders from executing the decree by paying the additional court fee for a decree for possession.
CONSIDERATION
5. In Kunhayammed (supra), the Hon'ble Supreme Court considered the concept of merger. The Court relied on the judgments in Commissioner of Income Tax, Bombay V. M/s. Amritlal Bhogilal and Co. (AIR 1958 SC 868), M/s. Gojer Brothers Pvt. Ltd. V. Shri. Ratanlal (AIR 1974 SC 1380) and S.S. Rathor V. State of Madhya Pradesh (AIR 1990 SC 10) and held that 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. The Court held that when a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under 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 and 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 authority below. The Court further held that the doctrine is not universal of unlimited application and the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid shall have to be kept in view. The above observations were made while considering whether a dismissal of a Special Leave Petition filed under Article 136 of the Constitution of India would attract the doctrine of merger. The Court held in the negative. In paragraph 44, the Court concluded as follows:
44. To sum up our conclusions are :-
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.
6. What is relevant for this case are the conclusions in para.44 (i) and (iii) above. The above judgment does not help the cause of the petitioner since in the case at hand the petitioner had availed of a statutory remedy available before a superior forum viz; a Second Appeal under Section 100 of the Code of Civil Procedure and by getting the same dismissed as not pressed got an affirmation of the decree passed by the trial court and the First Appellate Court. Consequently, a decree had also been drafted by the High Court.
7. In Chandi Prasad (supra), the Hon'ble Supreme Court reiterated the principle that where a statutory appeal is provided for, subject, of course to the restrictions which may be imposed, it is a continuation of the suit. The counsel for the petitioner relied on the observation in paragraph 10 of the judgment, which reads as follows:
“10. … … It is not in dispute that when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger applies.”
It is argued that the higher forum should have passed an order on merits in order to attract the doctrine of merger. The said contention cannot be sustained. If the higher forum entertains the appeal, but dismisses it since the appellants gave up their arguments, it cannot be said that it is not a decision on merit. The doctrine of merger will apply in such cases also. There are ever so many instances where appeals are argued at length and based on the discussions that happened in the court room, the appellant gives up his case. Merely because a lengthy judgment on merits is not pronounced in such cases, it does not mean that it was a dismissal for non-prosecution. In Anand Narayan Shukla (supra), the Hon'ble Supreme Court reiterated the law declared in Kunhayammed (supra) and Chandi Prasad (supra). The Court also considered a situation where an appeal is dismissed on the ground of delay and held that in such cases, doctrine of merger is not applied. In the case of Article 136 of the Constitution of India, it is only after Special Leave is granted that the proceedings become an appeal. Similarly, in the case of an appeal which is filed with a petition for condoning the delay, it is only after the delay is condoned that the appeal comes on board. As such, there can be no dispute regarding the proposition that a dismissal of an appeal consequent to a dismissal of an application for condonation of delay cannot be equated with a dismissal of an appeal where there was no question of condonation of any delay. In the case on hand, the appeal was filed in time and proceedings had continued and legal representatives of the deceased respondents were also brought on record.
8. In Shanmugavel Nadar (supra), the Hon'ble Supreme Court held that as a general rule, the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part, i.e., the mandate or decree issued by the court, which may have been expressed in positive or negative form. The Court also noted the judgment in the State of U.P. V. Mohammad Nooh (AIR 1958 SC 86), wherein a Constitution Bench by its majority held that while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree. The Court also referred to the decision in State of Madras V. Madurai Mills Co. Ltd. (AIR 1967 Supreme Court 681) wherein it was held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by the superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular Statute. The said principle will not apply to the facts of this case since in this case the decree of the trial court was challenged in first appeal and the concurrent decrees of the trial court and the First Appellate Court were challenged in a Second Appeal under Section 100 of the Code of Civil Procedure. There was no change in subject matter or the issue to be decided by any of the forums.
9. In Babu Singh (supra), the only question that was considered was with regard to the date on which the period of limitation would commence under Article 135 of the Schedule to the Limitation Act and is not of much significance to decide this case. In Ratan Singh (supra), the Hon'ble Supreme Court held that filing of an appeal would not affect the enforceability of the decree, unless the appellate court stays its operation. But if the appeal results in a decree, that would supersede the decree passed by the lower court and it is the appellate court decree which becomes enforceable. That was also a case where a Second Appeal was dismissed as a consequence to the dismissal of an application for condonation of delay in filing the appeal. The court in the said case held that the decree should be executed within the period prescribed, from the date of the decree of the First Appellate Court, since the High Court in the Second Appeal did not pass any decree. The said judgment will not apply to the facts of this case since in the present case, the High Court has passed a decree in the Second Appeal. Shanthi (supra), was a case where execution petition was filed within 3 years from the date of dismissal of the Second Appeal and is hence of no relevance for this case. In Surinder Pal Soni (supra), the Hon'ble Supreme Court reiterated the principles laid down in Kunhayammed (supra), Chandi Prasad (supra) and Shanthi (supra) which have already been dealt with earlier.
10. In view of the discussion above, I do not find any reason to entertain this revision petition. This is a case where the decree passed by the trial court was affirmed in the first appeal and a Second Appeal which was a statutory remedy available to the defendant was availed of and at a later point, the defendant in their wisdom, thought it wiser not to proceed further with the appeal. The Second Appeal was dismissed as a consequence and a decree was also drawn up. As such, this is a clear case of merger and the period of limitation will start running only from the date of decree in the Second Appeal. If the contention of the petitioner is accepted, it would lead to a situation where a person who suffers a decree of mandatory injunction can prefer an appeal and keep it pending till the end of the period of three years and get the same dismissed as not pressed, and avoid execution of the decree. That cannot be the intention of law.
The civil revision petition fails and is dismissed. At this stage, the counsel for the revision petitioner prayed for some time for surrendering vacant possession. In view of the fact that for the past two years the delivery has been stayed by this Court, the interim order granted shall continue to be in force for a period of three months on condition that the petitioner furnishes an affidavit before the execution court, agreeing to surrender vacant possession, within two weeks from today.