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Niyamatullah & Others v/s Badre Alam & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Civil Misc. Writ Petition No. 55343 of 2014

    Decided On, 12 November 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SUDHIR AGARWAL

    For the Appellants: Ashish Kumar Gupta, Gajendra Pratap Singh, Brijesh Kumar Singh, Advocates. For the Respondents: V.K. Baranwal, V.S. Chaubey, K.K. Mani, Advocates.



Judgment Text

1. Heard Sri Gajendra Pratap Singh, Senior Advocate, assisted by Sri Brijesh Kumar Singh, learned Counsel for the petitioners, Sri V.K. Baranwal, Advocate, Sri V.S. Chaubey, Advocate, and Sri K.K. Mani, Advocate, for the respondents and perused the record. The only contention is that though second appeal was dismissed as abated on 7.3.2008, but, for the purpose of limitation, it would commence from the date of Lower Court's decree and not from the date when the second appeal was dismissed. Reliance is placed on a decision of Apex Court in Ratan Singh v. Vijay Singh 2001 (42) ALR 447 (SC); Chandi Prasad and others v. Addl. District and Sessions Judge, Hapur and others 2001(43) ALR 441 (HC) and Uma Shankar Sharma Vs. The State of Bihar and Another--> .

2. On the contrary, it is contended on behalf of respondent that limitation will start for execution after the decree has attained finality i.e., when the appeal is dismissed, and placed reliance on Banshidhar Durga Dutta v. Loon Karan Sethiya and others 1983 (9) ALR 337.

3. The short question up for consideration in the case in hand is whether limitation for execution of a decree will commence from the date of decree or when judgment and decree of Trial Court attained finality after decision of appeal, first or second, under section 96 or 100, C.P.C., as the case may be.

4. Article 136 of Limitation Act, 1963 provides for limitation for execution of decree and reads as under:

5. It has not been disputed by learned Senior Counsel that appeal is a continuation of suit. Where an appeal is preferred against a judgment and decree of Trial Court or Lower Appellate Court to the higher Court, after decision of appeal, judgment of Court below merges with the judgment of Appellate Court and whether judgment passed in appeal is of reversal or modification or confirmation, it is wholly irrelevant. In U.J.S. Chopra Vs. State of Bombay, , the Court said:

"A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below."

6. Applying the doctrine of merger in Kunhayammed and Others Vs. State of Kerala and Another, , the Court said that there is no distinction between order of reversal or modification and order of confirmation passed by Appellate Court. In all the three cases, order passed by lower authority shall merge in the order passed by appellate authority whatsoever be its decision - whether of reversal or modification or confirmation. In Banshidhar Durga Dutta (supra), a Division Bench of this Court considered this very question. Therein original suit No. 234 of 1950 was decreed by Trial Court on 31.3.1955 and thereagainst appeal was dismissed on 6.4.1973. Thereafter, execution proceedings were initiated. The Execution Court held that decree having been put for execution after 12 years from the date of decree passed by Trial Court, it is barred by limitation. This view of Execution Court was reversed by this Court applying doctrine of merger and the Court held that limitation for execution would commence from the date when the appeal was decided. It was also held that dismissal of appeal as not pressed or withdrawn or otherwise would also have the same effect and cannot be taken differently. Para 21 of the judgment said as under:

"Counsel for the respondents tried to justify this case on the ground that as no decree for costs was passed in the appeal decided by the High Court in the instant case, the law laid down by the Madras High Court would not be applicable. To us, it appears that passing of a decree for costs or not doing so is not the material test for making the appellate decree binding. The test is whether the dismissal of the appeal, whether made on the basis of withdrawal, or on the basis of not being pressed, results in confirming the decision of, the Trial Court on the date on which the appeal is disposed of or not. If the answer to this question is in the affirmative, as in our opinion it should be, the date of the appellate decree would be relevant for computing the limitation for the purpose of execution of the same."

7. I find that aforesaid Division Bench has also been followed by this Court in Chandi Prasad and others (supra) and the aforesaid decision in fact goes against petitioner, as is evident from para 12 of the judgment, which reads as under:

"In view of the above the application filed by defendant-respondents for execution of the partition decree was within time as it was filed within 12 years from the date of the judgment of the High Court in Second Appeal referred to above."

8. To the same effect is the view taken by Patna High Court in Uma Shankar Sharma (supra) and it also does not help the petitioner but on the contrary was something otherwise, which help the respondent.

9. The decision in Ratan Singh (supra) does not help since the facts therein were totally different. No second appeal in fact in the eyes of law was pending. A time barred appeal was filed alongwith delay condonation application. Counsel for the appellant could not dispute that so long as delay is not condoned, it cannot be said that second appeal is pending in the eyes of law. The second appeal was dismissed as barred by limitation since delay condonation application was also rejected. It is in these circumstances, this Court said that an order dismissing second appeal as barred by limitation after dismissing delay condonation application cannot said to be a decree of Appellate Court since no appeal was pending at all. That is not the case in hand. The aforesaid decision, therefore, has no application in the case in hand.

10. Here it is not in dispute that original suit No. 277 of 1979 instituted for specific performance of contract for sale of a piece of land was decreed by Trial Court vide judgment and decree dated 6.9.1984. An appeal under section 96, C.P.C. was filed, which was registered as Civil Appeal No. 269 of 1984 but the same was dismissed by Appellate Court vide judgment and decree dated 11.12.1985. A second appeal under section 100, C.P.C. thereafter was filed i.e., Second Appeal No. 1205 of 1986, which was pending before this Court. It is true that therein no stay order passed by this Court staying decree of Courts below but the fact remains that appeal remained pending before this

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Court and abated on 7.3.2008 due to death of sole appellant on 1.6.2007, respondents No. 2 and 3 on 1.6.2003 and 30.9.2005 but no substitution was made or requested there-against. It is in these circumstances, I am clearly of the view that decree became enforceable after the second appeal filed in this Court, was dismissed, may be as abated. Execution having been initiated within limitation there after, I find no reason to interfere with the order passed by Court below. I hold that execution initiated in the case in hand is within limitation. 11. There is no manifest error in the impugned judgment warranting interference under Article 226 of the Constitution. 12. The writ petition lacks merit. Dismissed.
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