Gauhati High Court
M/S Malpani Industries vs New India Assurance Co. Ltd on 5 April, 2022
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GAHC010016252022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/215/2022
M/S MALPANI INDUSTRIES
A PARTNERSHIP FIRM HAVING ITS HEAD OFFICE SITUATED AT
BENGENAKHOWA, GOLAGHAT ASSAM AND ITS VENEER AND SAW MIL AT
DEHINGIA GAON, P.O. SILONIJAN, DIST. GOLAGHAT, ASSAM, PIN-786192
VERSUS
NEW INDIA ASSURANCE CO. LTD.
HAVING ITS REGISTERED OFFICE AT NEW INDIA ASSURANCE BUILDING
87 MAHATMA GANDHI ROAD, MUMBAI ITS NORTH EAST REGIONAL
OFFICE AT ULUBARI G.S. ROAD, GUWAHATI, ASSAM, AND BRANCH
OFFICE AT JORHAT, ASSAM
Advocate for the Petitioner : MR D K MISHRA
Advocate for the Respondent : MR. D MAZUMDAR
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT AND ORDER
05.04.2022
Hear Mr. D.K. Mishra, learned senior counsel appearing for the applicant as well
as Mr. D. Mozumder, learned senior counsel, representing the respondents, assisted
by Mr. A. Bhatra, Advocate.
2. This is an application seeking vacation, cancellation and/or withdrawal of the
ex-parte interim order dated 01.12.2021 passed in CRP 66/2021.
3. The facts necessary for disposal of this application are like this:- The petitioner
filed a money suit being M.S. 09/2003 against the opposite party/ Insurance
Company in the court of the Civil Judge, Golaghat. The suit was decreed in favour of
the petitioner on 07.03.2013. Thereafter, the opposite party preferred a regular first
appeal being RFA No. 40/2013 in this court. On 27.11.2015, the appeal was partly
allowed and the decree was modified by this court.
4. Thereafter, the opposite party/insurance company filed a review petition
praying for reviewing the judgment and order dated 27.11.2015 passed by this court.
The review petition was registered as Review Petition No. 90/2016 and this review
petition was dismissed by this court on 07.05.2019.
5. Aggrieved by the said order, the insurance company filed a Special Leave
Petition before the Hon'ble Supreme Court. Vide order dated 06.12.2019, the
Supreme Court condoned the delay and granted leave and also directed that the
grant of leave shall not come in the way of disbursement of the claim as allowed by
the High Court in favour of the present petitioner.
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6. In the meantime, the present petitioner filed the money execution case being
M.Ex. No. 28/2020 for execution of the modified decree.
7. The opposite party/insurance company, this time, filed a review petition before
the trial court praying for modification and reviewing the decree dated 07.03.2013
passed by the Civil Judge. This petition was accompanied by another petition under
Section 5 of the Limitation Act. That petition for condonation of delay was rejected by
the trial court and, therefore, the civil revision petition under Article 227 of the
Constitution of India has been filed before this Court.
8. At the time of admission of the appeal, an interim relief was granted to the
insurance company. The relief dated 01.12.2021 goes like this:
"So far as the interim prayer in respect of Money Execution Case No. 28/2020 ,
pending in the Court of the Civil Judge, Golaghat, is concerned, it is hereby
directed that the decree may be executed only to the extent of principal
amount as modified by this Court and interest calculated as per IRDA norms i.e.
interest of 6.25% plus 2 % (which is 2 % above the bank rate prevalent at the
beginning of the financial year in which the claim is reviewed by it)".
9. Aggrieved by the said interim relief, the present application has been filed by
the petitioner.
10. Mr. Mishra has submitted that this court, in the first appeal, has upheld the
interest imposed by the trial court at Golaghat. Paragraph 54 of the judgment of this
court is quoted as under:
"54....... As such, I am of the considered opinion that the Ld. Trial Court has
rightly decided the issue Nos. X, XII & XV in favour of the plaintiff by awarding
interest at the rate of Rs.2% above the bank lending rate as per the IRDA
regulations with effect from the date of institution of the suit i.e., 13.03.2003 till
realization of the full and final amount."
11. The learned senior counsel Mr. Mishra has further submitted that the review
petition, itself, filed by the opposite party/insurance company before the trial court is
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not maintainable in law because of the principle of merger of decree. It has been
submitted that the trial court decree no longer exist after modification of the same by
the High Court in first appeal.
12. In order to buttress his point, Mr. Mishra has relied upon a judgement of the
Supreme Court delivered in Chandi Prasad v. Jagdish Prasad, reported in (2004) 8
SCC 724. Paragraphs 21, 22 and 23 of the judgment are quoted as under-
"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.
(See U.J.S. Chopra v. State of Bombay [AIR 1955 SC 633 : (1955) 2 SCR 94 : 1955
Cri LJ 1410]).
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 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."
13. The learned counsel Mr. Mazumder, per contra, submits that there was a
confusion so far as the interest part of the decree is concerned.
14. I have given my anxious consideration to the submissions made by the learned
counsels for the both sides.
15. Whenever the trial court decree is allowed, reversed and modified by the
appellate court, the trial court decree merges with the appellate judgment. After
passing of the appellate judgment, the trial court decree or judgment loses its
existence. In fact, after passing of the judgment by this court in RFA No. 40/2013, the
trial court judgment passed in M.S. No. 09/2003 ceased to exist. Therefore, there
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cannot be any question of review of that judgment.
16. The interest portion of the subject matter has been adequately dealt with by
this court and both sides are bound by the judgment passed in RFA No. 40/2013.The
interim relief as quoted above is an error apparent on the face of the record.
17. Now, this court is of the opinion that the interim relief granted by this court on
01.12.2021 no longer deserves to exist. Hence, the interim relief granted by this court
on 01.12.2021 in CRP No. 66/2021 is vacated. The impugned order stands modified
accordingly.
18. The IA(C) stands disposed of.
JUDGE
Comparing Assistant
