Kerala High Court
Cheekilode Premalatha vs K.V.Abdurahiman on 3 April, 2025
Author: K.Babu
Bench: K. Babu
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O.P.(C).No.368 of 2017
1
'C.R'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
OP(C) NO. 368 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.01.2017 IN OS NO.463
OF 2004 OF II ADDITIONAL SUB COURT, KOZHIKODE
PETITIONER/DEFENDANT:
CHEEKILODE PREMALATHA,
AGED 68 YEARS,
W/O.LATE UNNI NAIR, AGED 68 YEARS,
5/2820, KALATHINKUNNU AMSOM DESOM,
KOZHIKODE TALUK, KOZHIKODE DISTRICT.
BY ADV R.RANJITH (MANJERI)
RESPONDENT/PLAINTIFF:
K.V.ABDURAHIMAN,
S/O.K.V.HUSSAIN, AGED 55 YEARS,
KAITHAVALAPPIL HOUSE, P.O.VENGERI,
VENGERI AMSOM DESOM, KOZHIKODE TALUK,
KOZHIKODE DISTRICT - 673 010.
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O.P.(C).No.368 of 2017
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BY ADVS.
SRI.C.M.ANDREWS
SMT.BOBY M.SEKHAR
SRI.JAIMON ANDREWS
SRI.SHYAM PADMAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P.(C).No.368 of 2017
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'C.R'
K.BABU, J
-------------------------------------------------
O.P.(C).No.368 of 2017
-------------------------------------------------
Dated this the 3rd day of April, 2025
JUDGMENT
The challenge in this Original Petition is to the common
order dated 05.01.2017 passed by the Subordinate Judge's
Court, Kozhikode, in I.A.Nos. 3204/2015, 4409/2015 and
1757/2016 in O.S.No.463/2004.
2. The petitioner is the defendant in a suit for
specific performance of an agreement for sale. The
respondent is the plaintiff. The trial Court decreed the suit
on 31.08.2006, directing the defendant to execute the deed
of conveyance on receiving the balance sale consideration.
In the decree, the trial Court has also directed the plaintiff to
deposit the balance sale consideration within three months
from the date thereof.
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3. The plaintiff preferred an appeal, RFA
No.257/2007, before this Court challenging the trial Court's
refusal to award the costs of the suit. This Court, as per
judgment dated 16.10.2014, dismissed the appeal confirming
the trial Court's judgment.
4. After the disposal of the appeal by this Court, it
came to the notice of the plaintiff that the amount paid as
advance sale consideration was not taken into consideration
in the decretal portion. Therefore, on 29.12.2014, the
plaintiff filed I.A.No.55/2015 under Section 152 of the Code
of Civil Procedure to correct the decree. The trial Court
allowed the application on 12.06.2015, and the decree was
amended on the same day. On 01.07.2015, the plaintiff
obtained a certified copy of the amended judgment and
decree. On 21.07.2015, he deposited the balance sale
consideration before the Court.
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5. The plaintiff filed I.A.No.3204/2015 and the draft
sale deed to execute and register the sale deed in his name
through the Court.
6. The defendant filed I.A.No.4409/2015 seeking
rescission of the agreement dated 21.07.2004 under Section
28(1) of the Specific Relief Act. In the application, the
defendant inter alia contended that as per the decree dated
31.08.2006, the plaintiff must deposit the balance sale
consideration within three months.
7. The defendant also filed I.A.No.1757/2016 for
issuing a Commission to ascertain the present market value
of the plaint schedule property, contending that as years
have passed after the decree, the market value of the
property was substantially escalated causing prejudice to
her.
8. The trial Court dismissed all the above
interlocutory applications as per the impugned common
order .
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9. I have heard the learned counsel for the
petitioner/defendant and the learned Senior Counsel for the
respondent/plaintiff.
10. The learned counsel for the petitioner/defendant
submitted that as the plaintiff challenged the decree to the
extent it refused to grant costs, there is no merger of the
appellate decree. The learned counsel further submitted
that even after passing the appellate decree without making
an application for extension of time as contemplated in
Section 28 of the Specific Relief Act, the plaintiff proceeded
to get the sale deed executed. The learned counsel
submitted that without extending the time specified by the
decree, the Court could not proceed with the applications
preferred by the decree-holder.
11. The learned Senior Counsel, relying on a series of
precedents, contended that the doctrine of merger squarely
applies to the facts of the case. The learned Senior Counsel
relied on Brahmanand v. Rajan [2012 (4) KLT 540]
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Frederick Paul Manohar v. Mohanan [2017 (1) KLT 417]
and Surinder Pal Soni v. Sohan Lal [(2020) 15 SCC 771]
to support his contentions.
12. The Black's Law Dictionary defines 'merger' as "(1)
The act or an instance of combining or uniting. ......... (5)
Civil Procedure: The effect of a judgment for the plaintiff,
which absorbs any claim that was the subject of the lawsuit
into the judgment, so that the plaintiff's rights are confined
to enforcing the judgment."
13. "Merger" means to sink or disappear in something
else; be swallowed up, lose identity or individuality. (Marfield
v. Cincinnati, D. & T. Traction Co., 144 N.E.689, 696, 111
Ohio St.139, 40 A.L.R 357). The doctrine of "merger", under
which cause of action is merged in judgment recovered,
proceeds upon the principle that a superior right covers an
inferior right, but the doctrine may be carried no further
than ends of justice require. (Letcher County, Ky., v. De Foe,
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C.C.A.Ky.,151 F.2d 987, 991) {Words and Phrases, West
Publishing Co, Volume 27}.
14. 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 a 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 application of
the doctrine depends on the nature of the appellate or
revisional order in each case and the scope of the statutory
provisions conferring the appellate or revisional jurisdiction
[State of Madras v. Madurai Mills Co.Ltd, (AIR 1967 SC
681)].
15. The principle buttressing the doctrine of "merger"
is that there cannot be more than one decree or operative
order controlling or regulating a subject-matter.
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16. The learned counsel for the petitioner relied on
Kunhayammed v. State of Kerala [(2000) 6 SCC 359] to
support his contentions.
17. In Kunhayammed, the Supreme Court observed
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
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forum and the content or subject-matter of
challenge laid or which could have been laid shall
have to be kept in view."
18. Relying on Prem Jeevan v. K.S. Venkata Raman
[(2017) 11 SCC 57], the learned counsel for the petitioner
submitted that in the absence of the time being extended by
the trial Court, the decree-holder could not execute the
decree by making the payment of decretal amount to the
judgment-debtor or making the deposit in the court in terms
of the said decree.
19. In Brahmanand Vs. Rajan [2012 (4) KLT 540],
while dealing with a decree granting specific performance,
this Court, in paragraph 12 of the judgment, observed as
follows:-
"12.....It has to be borne in mind that the
decree in the instant case was one for specific
performance of a contract. It is well settled that
even after the decree is affirmed in appeal by the
Apex Court and there is a merger in the strict
sense, even in a case where time for deposit is
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granted by the appellate court, extension of time
for the said deposit can be granted by the trial
court. It is not necessary that the person
concerned should approach the appellate court for
extension of time. This shows that even after the
decree passed by the trial court is confirmed by
the appellate court, the trial court does not
become functus officio and retains control over the
matter. The power granted to the trial court under
Ss.22 and 28 of Specific Relief Act are indications
in this regard."
20. In Frederick Paul Manohar v. Mohanan [2017
(1) KLT 417], while dealing with a matter where the parties
disputed the amount to be deposited as balance sale
consideration, this Court held, in paragraph 9 of the
judgment, as follows:-
"9. It is seen from the section itself that a
discretion has been vested in the court, even if time
expired for payment of the amount as provided in
the decree, the same can be extended by the court,
permitting the plaintiff to pay the amount and get
the document executed. It is seen from the
allegations in the petition filed by the plaintiffs for
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getting the document executed as I.A. No.835/2014,
that after Ext. P2 award, twice amounts have been
paid namely Rs.50,000/- and Rs.80,000/- during
2012 and 2013 and the time was extended between
the parties for execution of the document at the
request of the defendant and since he had not
prepared to receive the balance amount and execute
the document, the plaintiffs sent a notice for which
he had sent reply with false allegations and that
prompted the plaintiffs to file the petition. There is
no dispute regarding the fact that along with the
petition, the plaintiffs have deposited amount which
according to them due, namely Rs.7,15,000/-. They
have expressed their intention to deposit the amount
and produce the amount required for purchasing
stamp paper etc. It is also seen from the order of the
court below and also admitted both the counsel that
on 13.2.2015, the court below had passed that the
plaintiffs expressed their willingness to deposit the
balance sale consideration and admitted by the
defendant, permission is granted to get the deposit
amount as well and the balance consideration was
deposited by the plaintiff on getting permission.
When the amount has been disputed between the
parties and the court has permitted the balance
amount to be deposited also for the purpose of
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granting permission to the plaintiff to get the
document executed, then it can be presumed that
the time has been extended by the court."
21. In Surinder Pal Soni v. Sohan Lal [(2020) 15
SCC 771], the Supreme Court observed that the doctrine of
"merger" operates as a principle upon a judgment being
rendered by the Appellate court. The Court held that once
the appellate court renders its judgment, it is the decree of
the appellate court which becomes executable.
22. In Surinder Pal Soni, on the import of Section 28
of the Specific Relief Act, the Supreme Court observed that
the provision gives power to the court either to extend the
time for compliance with the decree or grant an order of
rescission of the agreement. These powers are available to
the trial Court, which passes the decree of specific
performance. In other words, when the court passes the
decree for a specific performance, the contract between the
parties is not extinguished. To put it clearly, the decree for
specific performance is in the nature of a preliminary
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decree, and the suit is deemed to be pending even after the
decree.
23. The indisputable position based on the
precedents referred to above is that the decree passed by
the trial Court merges with the appellate decree and that
in the case of a decree for specific performance, the
contract between the parties is not terminated, and the
decree is in the nature of the preliminary decree. The
suit is deemed pending even after the decree and the
Court which passed the decree would not become functus
officio.
24. In the present case, as per the decree dated
31.08.2006, the plaintiff was directed to deposit the
balance consideration within three months from the date
thereof. The plaintiff preferred appeal as mentioned
above, which ended in dismissal on 16.10.2014.
Therefore, the judgment passed by this Court in RFA
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No.257/2007 merged with the decree passed by the trial
Court. Therefore, the time stipulated by the trial Court
started to run from 16.10.2014. However, the plaintiff
did not deposit the balance sale consideration within
three months from 16.10.2014.
25. When it came to the notice of the decree-holder
that the decree had not taken into account the advance
sale consideration, the plaintiff was constrained to file
I.A.No.55/2015, under Section 152 CPC seeking correction
in the decree. This application was allowed on
12.06.2015 and necessary corrections were made therein.
The trial Court held that a fresh period would commence
from the date of the amended decree, that is.,
12.06.2015. The plaintiff deposited the amount on
21.07.2015. The trial Court, therefore, held that there is
no delay on the part of the plaintiff in depositing the
balance sale consideration.
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26. The learned Senior Counsel submitted that the
order correcting the decree as provided in Section 152
CPC would also amount to a merger of the original decree
with the corrected decree. The learned Senior Counsel
submitted that this is more so because in the case of
specific performance, the Court which passed the decree
does not become functus officio.
27. The fundamental principle underlying the
doctrine of "merger", as discussed above, is that there
cannot be more than one decree. When a decree passed
by the trial court stood corrected, invoking the remedy
available under the law, the original decree merges with
the corrected decree.
28. Even otherwise, when the Court corrected the
decree, it impliedly extended time as provided in Section
28 of the Specific Relief Act.
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29. The learned Senior Counsel also submitted that
the Maxim Actus Curiae Neminem Gravabit applies to the
facts of the present case as inadvertent omission on the
part of the Court compelled the plaintiff to file
I.A.No.55/2015 seeking the correction. Therefore, the
time as stipulated in the statute starts from the date of
the corrected decree.
30. In view of the above discussion, the prayer of
the defendant seeking rescission of the contract is not
sustainable. Having found that the prayer for rescission
of the contract was not sustainable, the trial Court
dismissed the application seeking the issue of a
Commission on the ground that the market value of the
property had escalated. The plaintiff deposited the
balance sale consideration in compliance with the
directions of the trial Court.
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31. I find no reason to interfere with the common
order impugned exercising jurisdiction under Article 227
of the Constitution of India.
The Original Petition stands dismissed.
Sd/-
K.BABU JUDGE
kkj
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APPENDIX OF O.P(C) 368/2017
PETITIONER EXHIBITS
EXHIBIT P1. TURE COPY O THE AGREEMENT FOR SALE
DATED 21.07.2004 EXECUTED BETWEEN THE
PETITIONER AND RESPONDENT.
EXHIBIT P2. TRUE COPY OF THE AFFIDAVIT FILED IN
SUPPORT OF I.A.3204/2015 IN
O.S.NO.463/2004 BY THE RESPONDENT.
EXHIBIT P3. A TRUE COPY OF THE COUNTER FILED BY
THE PETITIONER HEREIN I.A.3204/2015 IN
O.S.NO.463/2004.
EXHIBIT P4. TRUE COPY OF THE AFFIDAVIT FILED IN
SUPPORT OF I.A.NO.4409/2015 IN
O.S.NO.463/2004 BY THE PETITIONER
HEREIN.
EXHIBIT P5. TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENT HEREIN TO I.A.NO.4409/2015
IN O.S.NO.463/2004.
EXHIBIT P6. TRUE COPY OF I.A.1757/2016 IN
O.S.NO.463/2004 FILED BY THE
PETITIONER HEREIN.
EXHIBIT P7. TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENT HEREIN TO I.A.1757/2016 IN
O.S.NO.463/2004.
EXHIBIT P8. TRUE COPY OF THE COMMON ORDER DATED
05.01.2017 PASSED BY THE SUB COURT,
KOZHIKODE IN EXTS.P2, P4 AND P6
PETITIONS.
