Gujarat High Court
Bhagwandas Narshinhmal Sahetai vs Mahendra And Mahendra Seeds Pvt ... on 29 September, 2022
Bench: A.S. Supehia
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO.446 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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BHAGWANDAS NARSHINHMAL SAHETAI
Versus
MAHENDRA AND MAHENDRA SEEDS PVT LTD
================================================================
Appearance:
MR CHINMAY M GANDHI(3979) for the Opponent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 29/09/2022
CAV JUDGMENT
1. The present revision application has been
filed by the applicant seeking quashing and setting
aside the order dated 22.07.2021 passed by the
Judge, Chamber Court No.16, Ahmedabad below
application Exh.1 in Execution Petition No.178 of
2018 rejecting the same.
FACTS
2. The applicant is the original plaintiff and
the respondent is the original defendant of Special
Civil Suit No.46 of 1994. The suit came to be
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
instituted to recover Rs.1,85,000/- with running
interest @ 18% from the respondent on the basis of
the settlement of the account in May 1994. The suit
preferred by the applicant came to be allowed and
the counter-claim preferred by the respondent came
to be rejected on 11.09.2000 by the learned 3rd
Joint Civil Judge (S.D.), Godhra, below Exh.180. On
the same date, a decree was also to be drawn i.e.
on 11.09.2000 below Exh.181.
2.1 Being aggrieved and dissatisfied by the
judgment and decree passed by 3rd Joint Civil Judge
(S.D.), Godhra dated 11.09.2000, the respondent
preferred First Appeal No.2928 of 2000, which came
to be disposed of vide order dated 26.07.2005 by
directing the Registry to transfer the appeal to
Distrct Court, panchmahals at Godhra in view of the
Gujarat Civil Courts Act, 2005 coming into force
w.e.f. 09.05.2005.
2.2 Pursuant to the order passed by this Court
dated 26.07.2005, a new case number of the appeal
was registered by the District Court, Panchmahals
at Godhra being Civil Appeal No.141 of 2005. It is
pertinent to note that the applicant also preferred
a counter-claim before the Court. During pendency
of the said appeal before the District Court,
Panchmahals at Godhra, the applicant preferred
Execution Petition No.285 of 2013 before City Civil
Court at Ahmedabad for the execution of the decree
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
dated 11.09.2000 passed by 3rd Joint Civil Judge
(S.D.), Godhra. The said execution petition came to
be dismissed on 21.02.2014 by City Civil Court,
Court No.10, Ahmedabad, on the ground of
limitation, since the execution application came to
be preferred after a lapse of 12 years.
2.3 The appeal preferred by the respondent against
the judgment and decree passed by 3rd Joint Civil
Judge (S.D.), Godhra came to be dismissed by 7th
Additional District Judge, Panchmahals at Godhra on
30.12.2017. The decree is also drawn below Exh.59
by 7th Additional District Judge, Panchmahal at
Godhra. Since the decree was drawn by the first
appellate court, the applicant again filed
Execution Petition No.178 of 2018 for the
enforcement of the decree passed by 7th Additional
District Judge, Panchmahals at Godhra which has
been rejected vide impunged order which is under
challenge in the present application.
2.4 The respondent challenged the judgment and
decree passed by 7th Additional District Judge,
Panchmahals at Godhra before this Court by filing
the second appeal along with the application for
condonation of delay of 68 days caused in
preferring the second appeal. By an order dated
14.02.2020, Civil Application (for condonation of
delay) No.2 of 2018 came to be allowed, and the
delay in filing the second appeal came to be
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
condoned. The main Second Appeal No.68 of 2020 is
pending before this Court and no stay is granted
against the implementation of the decree passed by
the lower court.
SUBMISSIONS
3. Learned advocate Mr.Thakkar appearing for the
applicant has submitted that the execution petition
was filed by the applicant for execution of the
decree rendered by 7th Additional District Judge,
Panchmahals at Godhra and, therefore, it was filed
within the period of limitation. It is submitted
that the executing court ought to have considered
the fact that the decree, which was sought to be
enforced, was passed on 30.12.2017 and the
execution petition was filed on 27.07.2018, which
is within the period of limitation and, therefore,
it could not have disallowed the application.
3.1 It is submitted that the executing court ought
to have appreciated the doctrine of merger. It is
submitted that the appellate court had entertained
the appeal and passed the order after considering
the rival submissions and after perusing evidence
on record, and once the appellate court draws a
fresh decree, the decree under challenge merges in
the appellate decree and, therefore, it is
insignificant that whether the appellate court had
modified, reversed, or confirmed the decree under
challenge before the Court.
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
3.2 In support of his submissions, he has placed
reliance on the judgement of Apex Court in the case
of Surindar Pal Soni Vs. Sohanlal , (2020) 7 S.C.C.
771 and in the case of Chandi Prasad Vs. Jagdish
Prasad, (2004) 8 S.C.C. 724. Thus, he has submitted
that since the decree was drawn by the Court below
in Regular Civil Appeal No.141 of 2005 on
30.12.2017, the execution application filed by the
applicant should not have been rejected. It is
submitted that the Court below should have
appreciated the provisions of Section 47 of the
Code of Civil Procedure, 1908 (the Code) read with
Order XXI. Thus, it is submitted that the impugned
order may be set aside.
4. In response to the aforesaid submissions,
learned advocate Mr.Gandhi appearing for the
respondent has submitted that the execution
application is barred by the limitation, as
provided under Article 136 of the Limitation Act,
since the earlier application filed for execution
was already rejected by the concerned Court vide
order dated 21.02.2014 passed in Execution Petition
No.285 of 2013. Thus, in view of the aforesaid
order, the applicant was barred in filing the
execution petition again for implementation of the
same decree.
4.1 In support of his submissions, learned
advocate Mr.Gandhi has placed reliance on the
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
judgement of the Apex Court in the case of Manohar
S/o. Shankar Vs. Jaypal Singh S/o. Raj, (2008) 1
GLH 404 and in the case of Ratansingh Vs. Vijay
Singh, (2001) 1 S.C.C. 469. It is thus, submitted
that the impugned order may not be disturbed.
CONCLUSION
5. The facts, as narrated hereinabove are not in
dispute and hence, the only issue, which requires
to be examined is whether the execution petition
filed by the applicant being No.170 of 2018 could
have been rejected only on the ground that his
earlier execution petition Execution Petition
No.285 of 2013 filed for enforcing the decree dated
11.09.2000 came to be dismissed on 21.02.2014 by
City Civil Court, Court No.10, Ahmedabad, on the
ground of limitation.
6. Following facts are established from record.
a) The applicant, is the original decree-holder of
decree passed on 11.09.2000 passed in Special Civil
Suit No.46 of 1994 by 3rd Civil Judge (S.D.) at
Godhra, District Panchmahals.
b) Being aggrieved and dissatisfied by the
judgment and decree, the respondent preferred First
Appeal No.2928 of 2000 before this Court, which
came to be disposed of vide order dated 26.07.2005
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
by directing the Registry to transfer the appeal to
Distrct Court, panchmahals at Godhra in view of the
Gujarat Civil Courts Act, 2005 coming into force
w.e.f. 09.05.2005.
c) A new case number of the appeal was registered
by the District Court, Panchmahals at Godhra being
Civil Appeal No.141 of 2005.
d) During pendency of the said appeal before the
District Court, Panchmahals at Godhra, the
applicant preferred Execution Petition No.285 of
2013 before City Civil Court at Ahmedabad for the
execution of the decree dated 11.09.2000 passed by
3rd Joint Civil Judge (S.D.), Godhra.
e) The said execution petition came to be
dismissed on 21.02.2014 by City Civil Court, Court
No.10, Ahmedabad, on the ground of limitation.
f) Thereafter, the appeal preferred by the
respondent came to be dismissed by 7th Additional
District Judge, Panchmahals at Godhra on
30.12.2017.
g) After the dismissal of the appeal filed by the
respondent-applicant again filed Execution Petition
No.178 of 2018 for the enforcement of the decree
dated 11.09.2000, is not entertained by the
impugned order dated 22.07.2021 being barred by
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
limitation while considering the rejection of the
former execution petition.
h) the respondent has challenged his rejection of
first appeal in Second Appeal No.68 of 2020
which ,however no stay is granted against the
implementation of the decree passed by the lower
court.
7. The first appeal being Civil Appeal No.141 of
2005 filed by the defendant was rejected by the
judgement and decree dated 30.12.2017. Accordingly
the following order was passed:
"-: ORDER :-
1. Regular Civil Appeal No.141/2005 is hereby
dismissed.
2. The Judgment and Decree passed by 3rd Joint
Civil Judge (SD), Godhra in Special Civil Suit
No.46/1994 dated:- 11.9.2000 are hereby confirmed.
3. No order as to costs.
4. Decree be drawn accordingly.
5. Record and Proceedings of Special Civil Suit
No.46/1994 is hereby ordered to be sent to the lower
court."
8. Accordingly the decree was drawn confirming
the judgement and decree dated 11.09.2000 passed in
Special Civil Suit No.46 of 1994. The applicant, in
order to get fruit of his decree, again filed
Execution Petition No.178 of 2018, which was
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
dismissed again on the ground of law of limitation
by the impugned judgement and order dated
22.07.2021 on the ground that his earlier Execution
Petition No.285 of 2013 was already rejected on the
ground of limitation and hence, it was observed
that the Court has no jurisdiction to entertain
the execution petition.
9. At this stage, it would be apposite to refer
to the Article 136 of the Limitation Act, which
reads as under:
Description of suit Period of Time from which period
limitation begins to run
For the execution of Twelve years [When] the decree or order
any decree (other becomes enforceable or
than a decree where the decree or any
granting a mandatory subsequent order directs
injunction) or order any payment of money or the
of any civil court. 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:
Provided that an
application for the
enforcement or execution of
a decree granting a
perpetual injunction shall
not be subject to any
period of limitation.
Thus, as per the aforesaid article, limitation
for execution has been provided as 12 years.
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
10. I may with profit incorporate the observations
made by the Apex Court in the case of Chandi
Prasad (supra), wherein the Apex Court has held
thus:
"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. When a
special leave petition is dismissed summarily, doctrine
of merger does not apply but when an appeal is
dismissed, it does. [See V.M. Salgaocar and Bros. Pvt.
Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623].
25. The concept of doctrine of merger and the right of
review came up for consideration recently before this
Court in Kunhayammed and Others Vs. State of Kerala and
Another [(2000) 6 SCC 359] wherein this Court inter alia
held that when a special leave petition is disposed of
by a speaking order, the doctrine of merger shall apply
stating:
"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. Whenever this Court has felt
inclined to apply its mind to the merits of the
order put in issue before it though it may be
inclined to affirm the same, it is customary with
this Court to grant leave to appeal and thereafter
dismiss the appeal itself (and not merely the
petition for special leave) though at times the
orders granting leave to appeal and dismissing the
appeal are contained in the same order and at times
the orders are quite brief. Nevertheless, the order
shows the exercise of appellate jurisdiction and
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
therein the merits of the order impugned having
been subjected to judicial scrutiny of this Court.
42. "To merge" means to sink or disappear in
something else; to become absorbed or extinguished;
to be combined or be swallowed up. Merger in law is
defined as the absorption of a thing of lesser
importance by a greater, whereby the lesser ceases
to exist, but the greater is not increased; an
absorption or swallowing up so as to involve a loss
of identity and individuality. (See Corpus Juris
Secundum, Vol. LVII, pp. 1067-68)
43. We may look at the issue from another angle.
The Supreme Court cannot and does not reverse or
modify the decree or order appealed against while
deciding a petition for special leave to appeal.
What is impugned before the Supreme Court can be
reversed or modified only after granting leave to
appeal and then assuming appellate jurisdiction
over it. If the order impugned before the Supreme
Court cannot be reversed or modified at the SLP
stage obviously that order cannot also be affirmed
at the SLP stage."
26. In Kunhayammed (supra), it was observed:
"12... ... ... 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 content or
subjectmatter of challenge laid or which could have
been laid shall have to be kept in view."
27. The said decision has been followed by this Court
in a large number of decisions including Union of India
and Others Vs. West Coast Paper Mills Ltd. and Another
[(2004) 2 SCC 747].
28. However, when an appeal is dismissed on the ground
that delay in filing the same is not condoned, the
doctrine of merger shall not apply. [See Raja Mechanical
Company Pvt. Ltd. Vs. Commissioner of Central Excise,
ILR 2002 (1) Del. 33]
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
xxxxxxx
29. In Ratansingh (supra), possession of a property was
obtained on 14.12.1970. The First Appeal there against
was dismissed on 1.8.1973. Execution Petition was filed
on 24.3.1988, i.e., beyond the time fixed by the Act.
The Second Appeal preferred by the judgment debtor was
rejected having regard to the fact that the delay in
filing the said appeal was not properly explained.
30. Upon analyzing when a decree or order becomes
enforceable vis-a-vis the definition of 'decree' in
Section 2(2) of the Code this Court observed that when a
dismissal of an appeal takes place on the ground of its
being time barred, no decree is passed."
The observations made by the Apex Court
explicitly declares that when the appellate Court
passes a decree, the decree of the trial Court
merges with the decree of the appellate Court and
the same would supersede the decree of the trial
Court. It is further observed that once a decree is
sought to be enforced for the purpose of execution
thereof, irrespective of being original or
appellate, the date of the decree or any subsequent
order directing any payment of money or delivery of
any property at a certain date would be considered
to be the starting period of limitation. Thus, once
the appellate Court exercises its power in
entertaining appeal and after hearing both the
parties, if any judgement and decree is passed, the
same will "replace the judgement and decree of the
lower Court for all intent and purpose" in view of
the "doctrine of merger". The Apex Court has
cautioned that "It is only in the case when the
appeal is dismissed on the ground of delay on
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
filing the same, the doctrine of merger will not
apply". Hence as per the definition of "decree"
stipulated in section 2(2) of the Code, such
dismissal of appeal on the ground of delay will not
amount to decree.
11. However, in the instance case, the appellate
Court, after hearing the respective parties and
examining the evidence on record, has passed a
comprehensive judgement and order rejecting the
appeal and accordingly decree was drawn on
30.12.2017 in Civil Appeal No.141 of 2005. The
decree which is drawn specifically refers to the
filing of Special Civil Suit No.46 of 1994 by the
original plaintiff-present appellant, the decree-
holder for recovery of an amount of Rs.1,85,000/-.
It is also observed that counter-claim filed by the
defendant below Exh.54 claiming the amount of
Rs.1,37,000/- from the decree holder i.e the
present appellant was also rejected and the final
decree, the said judgement and decree passed by the
3rd Joint Civil Judge (S.D.), Godhra dated
11.09.2000 in Special Civil Suit No.46 of 1994 is
confirmed.
12. Thus, as per the observations made by the Apex
Court in the case of Chandi Prasad (supra), the
Court below has fallen in error in rejecting the
execution petition filed by the applicant seeking
execution of the original decree, after rejection
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
of Regular Civil Appeal, confirming the judgement
and decree dated 11.09.2000 passed in favour of the
applicant. Once the decree is drawn by the
appellate Court by confirming the judgement and
decree passed by the lower Court, the period of
limitation, as provided under Article 136 of the
Limitation Act will run from such date of judgement
and decree. The execution petition cannot be
rejected merely the first execution petition
preferred was rejected on the ground of limitation,
in wake of the fact that subsequently the decree
which is sought to be executed has been confirmed
in appeal. The provision of Article 136 of the
Limitation Act as well as the fruits of the
judgement and decree of a decree-holder cannot be
diluted merely because his earlier execution
petition is rejected during the pendency of appeal.
The limitation will commence from the judgement and
decree passed by appellate Court. If the view
expressed by the Court below in the impugned order
is permitted to be maintained, then the judgement
and decree-holder will not be able to enjoy the
fruits of the judgement and decree even after
having succeeding in the suit and subsequent
appellate proceedings. The entire exercise of the
original suit proceedings will be an exercise in
futility.
13. The reliance placed by the learned advocate
Mr.Gandhi upon the judgement of the Apex Court in
C/CRA/446/2022 CAV JUDGMENT DATED: 29/09/2022
the case of Ratansingh (supra), will on the
contrary help the appellant since in paragraph No.9
of the said judgement, it is observed that " if the
appeal results in a decree then that it would
supersede the decree passed by the lower Court and
the decree of the appellate Court becomes
enforceable".
14. Thus, the impugned judgement and order dated
22.07.2021 passed by the Judge, Chamber Court
No.16, Ahmedabad below application Exh.1 in
Execution Petition No.178 of 2018 is hereby quashed
and set aside. The matter is remanded to the Court
below for fresh consideration in light of the
observations made by this Court. The Execution
Petition No.178 of 2018 is ordered to be restored
to its original file.
15. The present application stands allowed. Rule
made absolute.
Sd/- .
(A. S. SUPEHIA, J)
FURTHER ORDER
After the judgment is pronounced, learned
advocate Mr.Gandhi appearing for the respondent
requests for stay of the judgment for some time.
The same is refused in the light of the aforesaid
observations.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
