Manoj Kumar vs Krishna Mohan Kumar
2025 Latest Caselaw 4117 Patna

Patna High Court

Manoj Kumar vs Krishna Mohan Kumar on 14 October, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

          IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.584 of 2025
     ======================================================
1.    Manoj Kumar Son of Late Ramdeo Kumar Resident of Village Saidpur,
      Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-
      Bhagalpur.
2.   Santosh Kumar, Son of Late Ramdeo Kumar, Resident of Village Saidpur,
     Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-
     Bhagalpur.

                                                                 ... ... Petitioners
                                     Versus
1.   Krishna Mohan Kumar Son of Sri Madan Mohan Kumar, Resident of
     Village Saidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar,
     District- Bhagalpur.
2.   Ram Mohan Kumar, Son of Sri Madan Mohan Kumar, Resident of Village
     Saidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-
     Bhagalpur.
3.   Neha Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-
     Naugachiya, District- Bhagalpur.
4.   Sikha Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-
     Naugachiya, District- Bhagalpur.
5.   Priyani Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-
     Naugachiya, District- Bhagalpur.
6.   Raghav Kumar, Son of Ramdeo Kumar, Resident of Tetrai, P.S.-
     Naugachiya, District- Bhagalpur.
7.   Shrey Kumar, Son of Ranjit Ray, Resident of Village Shahpur, P.O. Rkariya,
     P.S. Shambuganj, District- Banka.
8.   Janki Devi, Wife of Late Buchkun Kumar, Resident of Village- saidpur Basa
     Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.
9.   Shashi Kumar, Son of Late Buchkun Kumar, Resident of Village- saidpur
     Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.
10. Usha Kumari @ Anita, Daughter of Late Buchkun Kumar, Resident of
    Village- saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.
11. Pankaj Kumar, Son of Late Buchkun Kumar, Resident of Village- saidpur
    Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.
12. Reshma Bhardwaj, Daughter of Late Buchkun Nagar, Resident of Village-
     saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.
                                                              ... ... Respondents
    ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. J. S. Arora, Sr. Advocate
                                   Mr. Rakesh Kumar, Advocate
                                   Mr. Himanshu Shekhar, Advocate
                                   Ms. Supriya Kumari, Advocate
     For the Respondent/s   :      Mr. Ram Sumiran Singh, Advocate
     ======================================================
 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025
                                            2/23




            CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                          CAV JUDGMENT
         Date :14-10-2025

                      The present civil miscellaneous petition has been filed

         by the petitioners for setting aside the order dated 05.03.2025

         passed by the learned Sub Judge-1st, Naugachhia in Title

         Execution Case No. 02 of 2006, whereby and whereunder the

         learned executing court held that the said execution case has

         been filed within the statutory period of 12 years.

                      02. Briefly stated, facts of the case are that the

         respondents 1st set are the decree holders and petitioners and

         respondents 2nd set are the descendants of the original judgment

         debtors. The respondents 1st set filed Title Suit No. 100 of 1982

         for a decree of specific performance against the defendants of

         that suit for enforcement for an agreement for sale for executing

         a sale deed after payment of remaining amount of consideration

         money. The said suit was decreed on 24.05.1991 with a

         direction to the respondents 1st set to get the sale deed executed

         within      a    period      of    60     days.   Pursuant      thereto,   the

         plaintiffs/decree holders/respondents 1st set got the sale deed

         executed        after   depositing        the   consideration    money on

         20.07.1991

. The petitioners thereafter filed a miscellaneous case

under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for

short 'the Code) against the said decree vide Misc. Case No. 02 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

of 1992, which was dismissed on 25.06.1993. Against the said

order of dismissal, the petitioners then preferred a miscellaneous

appeal bearing Misc. Appeal No. 16 of 1993, which was

dismissed for non-prosecution on 11.10.1996. For execution of

decree of Title Suit No. 100 of 1992, the decree holders filed

execution case in the year 2006 bearing Execution Case No. 02

of 2006 for executing the said decree and declaration of decree

of possession. The petitioners who are the judgment debtors

appeared in the said case and filed an objection challenging the

maintainability of the said case. Besides other grounds, question

of limitation was also raised regarding maintainability of

execution case on 24.04.2024 by the petitioners. The learned

executing court, after hearing the parties, vide order dated

05.03.2025, rejected the objection of the petitioners and the said

order is under challenge before this Court.

03. Learned senior counsel, Mr. J. S. Arora, appearing

on behalf of the petitioners submitted that the impugned order is

bad in the eyes of law and suffers from manifest illegality. The

learned executing court has not considered that the execution

case was filed after 15 years of passing of the decree and

statutory period of limitation being 12 years, on face of it, the

execution case, is hopelessly barred by limitation. Therefore, the Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

learned executing court committed jurisdictional error. Learned

executing court further failed in its responsibility of discharging

the statutory duty casts upon it to consider the effect of

limitation in view of Section 3 of Limitation Act. The learned

executing court has further not appreciated that once a decree is

passed, it becomes executable from the date of decree itself,

unless its operation of execution was stayed by any Court.

Learned senior counsel further submitted that it is immaterial

that who has raised the question of limitation but what is

material is whether there is substance in the question brought to

the notice of the Court regarding maintainability of the case.

Learned senior counsel further submitted that the learned

executing court also failed to appreciate that filing of a

miscellaneous case under Order 9 Rule 13 of the Code and any

appeal against the dismissal of the said case would not stand in

the way of filing of execution case or execution relating to

decree in question nor shall stand in the way of executability of

the said decree. Since the execution case became barred by

limitation, the learned executing court committed jurisdictional

error by not appreciating that once the period of limitation

expired, the enforceability/executability of the decree became

barred and, in these circumstances, execution case was not Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

maintainable. The learned executing court has failed to follow

the mandate of Article 136 of the Limitation Act, limitation of

12 years would start when the decree and orders became

enforceable and the present decree became enforceable on

24.05.1991 itself. Therefore, the impugned order is not

sustainable as it is completely illegal and against the law.

04. Mr. Arora further submitted that though the

objection has been taken by the petitioners under Order 21 Rule

97 r/w Section 151 of the Code, the petitioner being party to the

proceeding could not have taken objection under Order 21 Rule

97 of the Code but wrong mentioning of provision is not fatal to

the consideration of the application if power to pass such an

order is available with the court. Therefore, wrong mentioning

of provision is not fatal to the cause of the petitioners. In this

regard, learned senior counsel referred to the decision of the

Hon'ble Supreme Court in the case of Pruthvirajsinh N Jadeja

(D) By Lrs. vs Jayeshkumar Chhakaddasm Shah, (2019) 9

SCC 533 wherein the Hon'ble Supreme Court held that it is well

settled law that mere mentioning of an incorrect provision is not

fatal to the application if the power to pass such an order is

available with the court. Another decision relied on by the

learned senior counsel in the case of P. K. Palanisamy Vs. N. Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

Arumugham and another, (2009) 9 SCC 173, wherein the

Hon'ble Supreme Court held that only because a wrong

provision was mentioned by the appellant, the same, in their

opinion, by itself would not be a ground to hold that the

application was not maintainable or that the order passed

thereon would be a nullity. The Hon'ble Supreme reiterated that

it is a well settled principle of law that mentioning of a wrong

provision or non-mentioning of a provision does not invalidate

an order if the court and/or statutory authority had the requisite

jurisdiction therefor. While making this observation, the

Hon'ble Supreme Court referred to the decision in the case of

Ram Sunder Ram vs Union Of India & Ors, (2007) 13 SCC

255, wherein it has been held that if an authority has a power

under the law, merely because while exercising that power the

source of power, is not specifically referred to or a reference is

made to a wrong provision of law, that by itself does not vitiate

the exercise of power so long as the power does exist and can be

traced to a source available in law. This observation was made

quoting N. Mani v. Sangeetha Theatre and Ors. (2004) 12

SCC 278.

05. On the point of commencement of limitation

period of 12 years, Mr. Arora referred to the decision of Hon'ble Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

Supreme Court in the case of Ram Bachan Rai & Ors. vs. Ram

Udar Rai, 2006 (9) SCC 446 and submitted that facts of the

case are almost similar to the facts of the said case before the

Hon'ble Supreme Court. In the case before the Hon'ble

Supreme Court, the suit was decreed ex parte on 3.5.1976 as the

defendants did not appear on the date fixed. No appeal was,

however, filed against the aforesaid judgment and decree. The

appellants before the Hon'ble Supreme Court, who were the

judgment debtors, filed an application under Order 9 Rule 13 of

the Code for setting aside the ex parte decree which was

dismissed for default on 14.7.1978. The said application was not

restored by the trial court and a Miscellaneous Appeal filed also

stood dismissed on 10.1.1987. The Civil revision filed against

the order of dismissal was also dismissed on 6.4.1987. At no

stage any stay was granted by any Court and the respondents as

decree holders filed an application for execution on 5.4.1991.

When symbolic possession was taken by the decree holders, the

judgment debtors filed objection under Section 47 of the Code

saying that the decree was not legally enforceable as it was

barred by time. The learned Subordinate Judge dismissed the

objection holding that the period of twelve years had to be

counted from the date of dismissal of the Civil Revision by the Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

High Court, i.e., from 6.4.1987 as the ex- parte decree had

merged in it. Against the dismissal of Civil Revision, the

appellant approached the Hon'ble Supreme Court. The Hon'ble

Supreme Court relied on the decision of three Judge Bench in

the case of Dr. Chiranji Lal (D) by Lrs. V. Hari Das (d) by Lrs.,

(2005 (10) SCC 746). In the aforesaid facts and circumstances,

the Hon'ble Supreme Court held that the application for

execution filed on 5.4.1991 was clearly time barred having been

filed beyond the period of twelve years prescribed under Article

136 of the Limitation Act and, thus, held that the High Court as

well as the Executing Court committed illegality in coming to a

conclusion that it was not barred by limitation.

06. Mr. Arora next referred to the decision in the case

of Bimal Kumar & Another vs. Shakuntala Debi & Others,

(2012) 3 SCC 548, wherein the Hon'ble Supreme Court held

that the decree was a final decree and, therefore, it was

immediately executable. As at no point of time, there was any

order by any court directing stay of operation of the judgment

and decree passed in partition suit and the question for

consideration before the Hon'ble Supreme Court was whether

the period during which the suit and the appeal preferred by the

appellants remained pending has to be excluded for the purpose Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

of limitation. The Hon'ble Supreme Court referred to the

decision in the case of Ratan Singh vs. Vijay Singh, AIR

(2001) 1 SCC 469, wherein it has been held that normally a

decree or order becomes enforceable from its date. But cases are

not unknown when the decree becomes enforceable on some

future date or on the happening of certain specified events. The

Hon'ble Supreme Court further 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. When the appellate order does not amount to a

decree there would be no supersession and hence the lower

court decree continues to be enforceable. The Hon'ble Supreme

Court also referred to the case of Ram Bachan Rai & Ors.

(supra). Thus, having regard to facts and judicial

pronouncement before it, the Hon'ble Supreme Court reached

the conclusion that the initiation of execution proceedings was

indubitably barred by limitation and the appeal was allowed.

07. Mr. Arora next referred to the decision of a

Division Bench of this Court in the case of Branch Manager,

Central Bank of India vs. M/s. A.M. Brothers, reported in 2013 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

(3) PLJR 807, wherein the Hon'ble Division Bench referred to

the cases of Bimal Kumar & Another (supra) and Ratan Singh

(supra) and held that the ex parte decree passed in 1992

continued to be enforceable from the date of decree itself and

there was no stay at any stage. The Hon'ble Division

considering the hardship arising out of non-enforceability of a

decree on the ground of limitation and public interest being

suffered because of legal technicality, rejected such argument in

view of the doctrine ""dura lex sed lex" which means that "the

law is hard but it is the law". The Hon'ble Division Bench

further referred to the decision in the case of Madamanchi

Ramappa & Anr vs Muthalur Bojjappa, AIR 1963 SC 1633,

wherein it has been held what is administered in courts is justice

according to law and consideration of fair play and equity,

however, important they may be, must yield to clear and express

provisions of the law. Further, in India House Vs. Kishan N.

Lalwani, (2003) 9 SCC 393, the Hon'ble Supreme Court held

that the period of limitation statutorily prescribed has to be

strictly adhered to and cannot be relaxed or departed from for

equitable consideration.

08. Thus, the learned senior counsel submitted that the

impugned order is completely illegal and hence, the same needs Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

to be set aside.

09. Learned counsel appearing on behalf of the

respondents 1st set vehemently opposed the contention of the

learned senior counsel for the petitioners. Learned counsel for

the respondent 1st set submitted that the judgment debtors filed

an application viz. under Order 21 Rule 97 r/w Section 151 of

the Code under some misconception. The judgment debtors are

not allowed to take objection in the aforesaid provision. They

are not stranger and they cannot claim in Executing Court to

decide their right, title and possession. Therefore, the

application was not maintainable and it was rightly rejected. The

question of limitation could not be raised after the execution of

the sale-deed and any objection on this account is barred by

doctrine of estoppel, waiver and acquiescence. Learned counsel

further submitted that against the ex parte decree, the judgment

debtors preferred an application under Order 9 Rule 13, but

miscellaneous case of the judgment debtor has been dismissed

on 25.06.1993. Thereafter, Misc. Appeal No. 16 of 1993 was

filed by the judgment debtors and the same was also dismissed

on 11.10.1996 in default. Meanwhile, the decree holders have

deposited the rest consideration amount within statutory period

as directed by the judgment of the learned trial court. In such Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

circumstances, period of limitation under Article 136 of the

Limitation Act would come into play from the date of

11.10.1996 and the judgment and decree of the learned trial

court merged with the decree of the appeal and from the date of

dismissal of the said appeal, limitation period would start.

Therefore, the execution application was filed well within the

period of limitation.

10. In support of his contention, learned counsel for

the respondent relied on a decision of learned Co-ordinate

Bench in the case of Sudarshan Prasad Vs. Smt. Rajpati Devi

(Civil Misc. Jurisdiction No. 157 of 2020, decided on

10.12.2024). Learned counsel for the respondents submitted that

the issue before the learned Co-ordinate Bench was almost

similar. The respondent therein filed a suit bearing Title Suit No.

14 of 1994 for specific performance of contract and the suit was

decreed ex parte against defendant vide judgment and decree

dated 09.01.1998. The ex parte decree was challenged by filing

Miscellaneous Case No. 13 of 1998 under Order IX Rule 13 of

the Code bu the said miscellaneous case was dismissed on

27.08.1999. The defendant, thereafter, challenged the said order

in miscellaneous appeal, which was also dismissed on

25.08.2000. Against the aforesaid order, the defendant preferred Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

a civil revision before this Court, which was also dismissed on

31.08.2006. Thereafter, in the execution case filed by the decree

holder, maintainability of execution case was challenged on the

ground of limitation. Learned counsel further submitted that the

objection on the ground of maintainability of execution case

was rejected by the learned executing court which was

challenged in Civil Miscellaneous Jurisdiction No. 157 of 2020.

Learned counsel next submitted that the decisions in the case(s)

of Ram Bachan Rai (supra), Ratan Singh (supra), Branch

Manager, Central Bank of India (supra) were cited in support

of his contention by the petitioner therein but the learned Co-

ordinate Bench, after discussing a number of case laws on the

point of commencement of period of limitation, relied on the

decision of Hon'ble Supreme Court in the case of

Kunhayammed Vs. State of Kerala, (2000) 6 SCC 359 and also

the Division Bench decision of this Court in the case of Ram

Murti Choudhary @ Ram Murat Prasad Chaurasiya Vs. Ram

Nihora Choudhary, (2017) 2 PLJR 136, dismissed the civil

miscellaneous petition holding that the dismissal of the civil

revision would amount to merger of a decree and the execution

petition was not found barred by limitation. Learned counsel

next submitted that decision of the Co-ordinate Bench in the Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

case of Sudarshan Prasad (supra) has been affirmed by the

Hon'ble Supreme Court vide order dated 07.02.2025 passed in

Special Leave to Appeal (C) No(s). 2765 of 2025 whereby and

whereunder the Hon'ble Supreme Court showed its

disinclination to interfere with the impugned judgment passed

by the Co-ordinate Bench of this Court.

11. Learned counsel for the respondent further

submitted that in the light of decision of Hon'ble Supreme Court

in the case of Kunhayammed (supra), the dismissal order of the

appellate court would merge with the decree of trial court and

the limitation period would start from the date of dismissal of

the appeal. Therefore, the execution case of the respondent is

not time barred. Learned counsel further submitted that it is the

substance of the petitioners' application and not the mere

nomenclature of the case and if any order is challenged before a

Superior Court, then it is an appeal against the order of lower

court and the mere nomenclature would not change the nature of

the appeal. Placing strong reliance on the decision in the case of

Sudarshan Prasad (supra), learned counsel submitted that

dismissal of miscellaneous case against an ex parte decree was

challenged by the judgment debtor/petitioner before the

appellate court by filing miscellaneous appeal, the order of the Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

learned trial court has merged with the decision of the appellate

court and for this reason, the execution case cannot be said to be

barred by limitation. Thus, the learned counsel submitted that

there is no merit in the present petition and the impugned order

needs no interference by this Court.

12. I have given my thoughtful consideration to the

rival submission of the parties in the light of peculiar facts of the

case.

13. Admittedly, the Title Suit No. 100 of 1982, filed

by the plaintiffs/decree-holders for a decree of specific

performance for enforcement for an agreement for sale for

executing a sale deed after depositing the consideration money

on 20.07.1991, decreed on 24.05.1991. The miscellaneous case

filed by the petitioners under Order IX Rule 13 of the Code vide

Misc. Case No. 02 of 1992 came to be dismissed on 25.06.1993.

Thereafter, the petitioners preferred Misc. Appeal No. 16 of

1993, which was also dismissed on 11.10.1996, though for non

prosecution. The execution case has been filed in the year 2006.

The challenge to the Execution Case No. 02 of 2006 is on the

ground that the limitation period of 12 years started from the

date when the ex parte decree was passed, i.e. on 24.05.1991,

and came to an end in the year 2003 whereas the execution has Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

been filed in the year 2006. However, the learned counsel for

the respondents 1st set contended that the decree of the learned

trial court merged with the order of the appellate court

dismissing Misc. Appeal No. 16 of 1993 and, therefore, filing of

execution case in the year 2006 was well within the limitation

period of 12 years. Now, challenge to the order of the learned

executing court by the petitioner is based on the reliance placed

by the learned senior counsel on the decisions in the case(s) of

Ram Bachan Rai (supra), Ratan Singh (supra), Branch

Manager, Central Bank of India (supra). However, the learned

Co-ordinate Bench in the case of Sudarshan Prasad (supra)

have considered these authorities. It was observed by the

learned Co-ordinate Bench that Ratan Singh (supra) has been

overruled by the Hon'ble Supreme Court in the case of Shyam

Sundar Singh Vs. Pannalal Jaiswal, 2005(1) SCC 436.

Thereafter, taking note of the Hon'ble Division Bench decision

of this Court in the case of Ram Murti Choudhary @ Ram

Murat Prasad Chaurasiya (supra), the learned Co-ordinate

Bench observed that this reference has been decided while

relying upon the decision in the case of Kunhayammed (supra).

Paragraph Nos. 32, 41 and 44 of Kunhayammed (supra) read as

under:

"32. It may be that in spite of having Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal.

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 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

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 therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

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. The 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 the special leave petition is converted into an appeal.

(iii) The 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 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

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 Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

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 the 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 the 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 CPC."

14. The learned Co-ordinate Bench in the case of

Sudarshan Prasad (supra) held in Paras-29 and 30 as under:

"29. It is well settled that it is the substance of the petition/application and not the mere nomenclature of the case chosen by the parties that has determinative value. In my Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

view, if any order is challenged before a superior Court then it is an appeal against the order of the lower Court and the mere nomenclature will not change the nature of the appeal. In the present case also, the ex parte decree of the Munsif was challenged before the learned District Judge by filing a Miscellaneous Appeal, which was dismissed and the same was thereafter challenged/appealed before the High Court under Civil Revisional Jurisdiction though the nomenclature is civil revision but, in fact, it is an appeal against the order passed by the District Judge. In the present case, against the order of appeal, a revision petition has been filed before this Court and in the revision, the order of the appeal has been affirmed and therefore, the decision of the subordinate Court i.e. Munsif has merged in the decision of the superior forum i.e. in the order of this Court and therefore, the same is capable of enforcement in the eye of law.

30. In view of the aforesaid discussions as well as in view of the decisions rendered in the case of Kunhayammed vs. State of Kerela (supra) and Ram Murti Choudhary @ Ram Murat Prasad (D.B) (supra) dismissal of the civil revision will amount to merger of a degree and the same cannot be said to be barred by limitation. Therefore, once it is held that the appellate decree has merged with the Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

revisional order, the period of limitation for the execution of decree will start from the date of dismissal of the civil revision and therefore, the execution case filed by the decree holder i.e. respondent-plaintiff is well within the period of limitation.

15. The decision of the learned Co-ordinate Bench in

the case of Sudarshan Prasad (supra) was challenged before

the Hon'ble Supreme Court in Special Leave to Appeal (C)

No(s). 2765 of 2025 and the said Special Leave to Appeal has

been dismissed vide order dated 07.02.2025, thus, affirming the

reasoning adopted by the learned Co-ordinate Bench. The fact

of the present case are similar to the case before the learned Co-

ordinate Bench and adopting the same reasoning and in the light

of the decision rendered by the Hon'ble Supreme Court in the

case of Kunhayammed (supra), it can be safely concluded that

the decree of the learned trial court merged with the order of the

learned appellate court and the period of limitation for execution

of decree would start from the date of dismissal of Misc. Appeal

No. 16 of 1993. Therefore, Execution Case No. 02 of 2006 filed

by the decree holders/respondent 1st set is well within the period

of limitation.

16. Therefore, in the light of discussion made here-in-

before, I do not find any infirmity in the impugned order dated Patna High Court C.Misc. No.584 of 2025 dt.14-10-2025

05.03.2025 passed by the learned Sub Judge-1 st, Naugachhia

and the same is hereby affirmed. Accordingly, the present

petition is dismissed.

17. The stay granted vide order dated 13.08.2025

stands vacated.

18. Pending interlocutory applications, if any, stand

disposed of.

(Arun Kumar Jha, J) Ashish/-

AFR/NAFR                AFR
CAV DATE                13.08.2025
Uploading Date          14.10.2025
Transmission Date       NA