JUDGMENT
M.Y. Eqbal, J.
1. This application under Article 227 of the Constitution is directed against the order dated 31.7.2006 passed by Munsif 1st Court, Dhanbad whereby he has allowed the objection filed by the judgment-debtor under Section 47 of the Code of Civil Procedure (shortly CPC) and dismissed the Execution Case No. 05/2003 as being barred by limitation.
2. The facts of the case lie in a narrow compass:
The original plaintiffs, namely Sheo shankar Mahto and Dasrath Mahto filed a suit in the year 1971 being Title Suit No. 187 of 1971 in the court of Munsif, Dhanbad against the original defendants, Bishwanath Thakur and Ful Kumari Devi for declaration of their possession or in the alternative, recovery of possession of the. suit property by evicting the defendant 1st party there from besides a decree of permanent injunction and for removal of structures from the portion of the land. The suit was decreed in terms of judgment dated 11.3.1977. The respondent, Bishwanath Thakur preferred an appeal being Title Appeal No. 66 of 19.77. The said appeal was allowed by the First Additional Sub Judge, Dhanbad in terms of judgment dated 12.9.1979. The plaintiffs then preferred Second Appeal No. 245 of 1979 before the Patna High Court, Ranchi Bench. The said Second Appeal was finally heard and allowed in favour of the plaintiffs Sheo Shankar Mahto and others by judgment dated 3.4.1989 and the judgment and decree in Title Appeal was set aside and that of the Munsif was affirmed. Thereafter, in 1993 the plaintiffs/decree holders filed Execution Case No. 23 of 1993 for execution of the decree. In the said Execution case the judgment debtor/defendant No. 1 filed objection under Section 47 CPC which was rejected by the Executing Court by order dated 11.6.1996 and the said order was affirmed in Civil Revision No. 269/1996. The defendant/Judgment debtor preferred Special Leave Petition before the Supreme Court but the said petition was also dismissed by order-dated 3.2.1997. It appears that Execution Case No. 23 of 1993 remained pending and was adjourned from time to time up to September, 2000. The said Execution case No. 23/93 was ultimately dismissed for default on 22.9.2000. Therafter the legal representatives of plaintiff No. 1/decree holder and plaintiff No. 2 filed a petition on 17.4.2003 for execution of the said decree which was numbered as Execution Case No. 05/2003. In the said Execution Case the judgment debtor filed objection under Section 47 CPC questioning the maintainability of the fresh execution case and contended that the said Execution Case was barred by limitation. The Executing Court, after hearing the parties, finally dismissed the said execution case as being barred by limitation by passing the impugned order dated 31.7.2006.
3. In the light of the aforesaid facts the only question that falls for consideration is as to whether the second execution case has rightly been dismissed as being barred by limitation ?
4. Mr. S.N. Das, leaned Counsel for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that earlier execution case No. 23/93 was dismissed only because after the death of original decree holder the present petitioner was not substituted, as there was no provision for substitution in execution proceeding. Learned Counsel further submitted that second execution was filed on 17.4.2003 i.e. well within three years from 22.9.2000 when earlier execution case was dismissed for default. Learned Counsel put reliance on the decision of the Madras High Court in the case of K.P. Chidambara Mudaliar , in the case of Kaibala Padhan. v. Sanyasi Sasamala and Anr. and on the decision of the Supreme Court in the case of Chandi Prasad and Ors. v. Jagdish Prasad and Ors. .
5. Before answering the question, I would first like to discuss the decision relied upon by the learned Counsel for the petitioners. In Chandi Prasad case (Supra), the fact of the case was that a partition suit was filed by the respondents which were decreed on 25.4 1962 and final decree was prepared on 7.5.1968. On 6.8.1968, an execution case was filed. In the meantime, a first appeal had been filed which was dismissed on 21.3.1969. A second appeal was also preferred which was allowed and the matter was remitted back to the appellate court for deciding the appeal on merit. The first appellate court again dismissed the appeal on 4.1.1974. In the meantime, the said execution case was dismissed because the second appeal preferred by the appellant was allowed. Against the judgment and decree dated 4.1.1974, the appellant preferred second appeal before the High Court and the same was dismissed on 18.4.1985 and formal decree was drawn on 30.10.1986. An application for execution of the decree was filed by the respondents on 26.3.1997. The appellant filed objection contending that execution case was barred by limitation. The said objection was allowed by the Executing Court by order dated 1.5.99. Respondents preferred appeal against the order of Executing Court before the Additional District and Sessions Judge and the court held that the said execution case was not barred by limitation. The appellant filed writ petition before the High Court questioning the correctness of the said order. The writ petition was dismissed by order dated 30.3.2001. The appellant then moved the Supreme Court against the said order of the High Court. The Supreme Court discussed the doctrine of merger in detail and held that:
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.
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 he 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. Salgaqcar and Bros. (P) Ltd. V. CIT]
6. The aforesaid decision relied upon by the petitioners will not be of any help to the petitioner for the reason that question involved in the instant case is not similar to that case. In the instant case, although the suit was decreed by the first court on 11.3.1977 and the execution case being Execution Case No. 23/93 was filed in 1993 which was within time because of the principle of merger inasmuch as the decree was ultimately affirmed in second appeal by the High Court in the year 1989.
7. The decision of the Madras High Court in the case of K.P. Chidambara Mudaliar (Supra) will also be of no help to the petitioner as the question involved in the instant case is not the same. In that case, the decree holder died in 1961 and her daughter filed execution petition in 1963 within limitation for realization of decretal amount. The execution petition was dismissed on 4.6.1966. She filed another petition within three years making some additional amount also. The Court held that subsequent execution petition would be regarded as a composite petition containing a prayer to continue or revive the prior execution petition plus a fresh execution petition in respect of such fresh claim. The court held that mere addition of a claim cannot ipso facto convert what is essentially an application for continuation or revival into an independent execution petition.
8. It is well settled that the period of limitation under Article 136 of the Limitation Act runs from the date of original decree or from the date when the original decree is confirmed. It is not always necessary that a party in whose favour decree is passed will wait preparation of the final decree, which, sometimes, may take much time, This point has been fully discussed by the Supreme Court in the case of W.B. Essential Commodities Supply Corpn. v. Swadesh Agro Farming and Storage Pvt. Ltd and Anr. . In that case, the Supreme Court was considering the provision of Article 136 of the Limitation Act with regard to limitation for filing an application for execution of decree. In the case before the Supreme Court, a suit was filed in 1980 in the High Court for recovery of certain amount. The suit was decreed on 8.3.1982. However, the decree was actually drawn up arid signed by the Judge on 9.8.1983. The decree holder filed an application for execution of the decree before the High Court on 5.6.1995. The Executing Judge ordered execution of the decree, but on appeal by the respondents, the Division Bench of the High Court set aside the order of Executing Judge holding that the execution petition was barred by limitation under Article 136 of the Limitation Act. The judgment debtor challenged by special leave in the Supreme ‘Court. The question arose before the Supreme Court was whether the period of limitation under Article 136 of the Limitation Act, 1963 will start from the date of decree or from the date when the decree is actually drawn up and signed by the Judge. The Supreme Court held that period of limitation under Article 136 runs from the date of decree and not from the date when the decree is actually drawn up and signed by the Judge. A decree would be deemed to come into existence immediately on the pronouncement of judgment. But it is a fact of which a judicial notice may be taken that drawing up and signing of the decree takes some time after the pronouncement of the judgment. Their Lordships observed:
9. Rule 6-A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time-limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree ‘not so drawn up, Clause (a) of Sub-rule (2) of Rule 6-A enables a party to make an appeal under Rule 1 of Order 41 CPC without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in Clause (b) of the said sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. It-further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of execution or for any other purposes when the decree has been drawn up.
Their Lordship further observed:
14. The next contention of Mr Ray is that due to the Court taking more than a year and three months to draw up and sign the decree, the period of limitation of 12 years, available to the appellant, is cut short so the stating point of limitation has to be computed from the date of signing of the decree to avert hardship and prejudice to him. The submission appears to be attractive, but falls to scrutinizing. The argument is obviously based on the maxim actus curiae neminem gravabit (an act of the court shall prejudice no man). It would apply to relieve a party of the hardship or prejudice caused due to the act of the cdurt. But to invoke this maxim it is not enough to show that there is delay in drawing up of the decree, it must also be shown that the appellant has suffered some hardship of prejudice due to the delay of the Court. In other words, there must be a nexus between the act of the court complained of and the,hardship or prejudice suffered by the party.
9. Recently in the case of Damodaran Pillai and Ors. v. South Indian Bank Ltd. , the Supreme Court was considering the provision of Order 21 Rules 105 and 106 of the Code of Civil Procedure. In that case, the respondent obtained a decree against the appellant for a certain sum. He then filed an execution petition. The said petition was dismissed for default. The appellant filed a restoration application after a lapse of about 7 1/2 years on the premises that he had learnt about the dismissal of execution petition only 9 days earlier. The appellant opposed the said restoration application as beyond limitation. The trial Court rejected the appellant’s contention and allowed the restoration application. The appellant filed revision against the said order, but the revision was dismissed. The appellant then moved the Supreme Court by filing appeal. The Supreme Court allowing the appeal held as under:
11. The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of Sub-rule (3) of Rule 106.A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Sub-rule (2) of Rule 105, the starting point of limitation for filing of a restoration application would be the date of the order and not the knowledge thereabout. As the applicant is represented in the proceeding through his advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an ex parte order was passed and that too without proper notice upon the judgment debtor and-not otherwise. Thus, if an order has been passed dismissing an application for default under Sub-rule (2) of Rule 105, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree-holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant.
14. It is also trite that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
16. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order 21 of the code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order 21 of the Code. In that view of the matter, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.
10. As noticed above, in the instant case, judgment and decree passed by the trial Court on 11.3.1977 was finally confirmed by the High Court on 3.4.1989 in Second Appeal No. 245 of 1979. The original decree holder filed Execution Case being Execution Case No. 23 of 1993 within 12 years from the date of the decree. The said execution case was ultimately dismissed for non-prosecution on 22.9.2000. Thereafter, the legal representatives of the decree holder filed a fresh execution petition on 17.4.2003, which was registered as Execution Case No. 05 of 2003. Admittedly, the second Execution Case No. 05 of 2003 filed by the legal representatives of the decree-holder was beyond the period of 12 years from 3.4.1989 when the judgment and decree attained its finality. After the Execution Case was dismissed for non-prosecution, the remedy available to the decree holder or his representatives was to file an application for restoration of the Execution Case as provided under Order 21, Rule 106 of the Code of Civil Procedure. The period of limitation for filing an application for restoration of Execution Case is 30 days from the date when the Execution Case is dismissed for default. Admittedly the second Execution Case was filed beyond the period of 12 years from the date of the decree and no application for restoration of the earlier execution case was filed within 30 days from the dare of dismissal as contemplated under Rule 106 of Order 21 of the Code of Civil Procedure.
11. In the aforesaid premises, in my considered opinion, the Court below rightly held that the second Execution Case having been filed after the period of 12 years from the date of decree is not maintainable. The impugned order, therefore, needs no interference by this Court. There is not merit in this application, which is, accordingly, dismissed.