ORDER
Maheswaran, J.
1. These two civil revision petitions arise out of the common order made in E.P. Nos. 9 and 15 of 1985 in O.S. No. 103 of 1957 on the file of the Subordinate Judge, Devakottai.
2. C.R.P. No. 1236 of 1986 is against E.P. No. 9 of 1985 in O.S. No. 103 of 1957. The execution petitioner was the 9th defendant and the respondent was the 4th defendant. The suit was one for partition. A preliminary decree was passed on 5.3.1960. The execution petition was for delivery of item 13 concerned in the suit and it was allotted to the 9th defendant. The contention of the respondent/4th defendant was that the execution petition is barred by the law of limitation. His contention is that a final decree was passed in the suit on 18.8.1966 and the starting point of limitation was from the date of final decree, and this execution petition filed on 26.4.1985 is clearly barred by the law of limitation and that the execution petitioner has lost his right to item 13.
3. A reply statement was filed which in effect is that the proceedings which are pending in High Court were terminated on 14.7.1975 and therefore the starting point of limitation is from that date.
4. C.R.P. No. 1238 of 1986 is against E.P. No. 15 of 1985 in the same suit. The petitioner in the E.P. was the 10th defendant. The respondent was the 4th defendant. That was for delivery of item 6 of A schedule property. Finals decree was passed on 18.8.1966. The E.P. was filed on 16.8.1985. The contention was that the execution petition is barred by limitation.
5. By a common order, the executing Court ordered delivery of both items 13 and 6 of A schedule. It is against that order that both the civil revision petitions are filed.
6. Certain relevant facts which are necessary for the disposal of these civil revision petitions need narration. O.S. No. 103 of 1957 on the file of the Sub Court, Devakottai is a suit for partition of 33 items. C.R.P. No. 1237 of 1986 is concerned with item 13. A preliminary decree was passed on 5.3.1960. A final decree was passed in I.A. No. 1009 of 1962 on 18.8.1966. An appeal in A.S. No. 451 of 1967 was filed in High Court by plaintiffs 1, 2 and 4 in respect of items 32 and 33 only. According to the revision petitioner, item 13 was not the subject-matter of appeal. At first interim stay of all proceedings in O.S. No. 103 of 1957 was granted by K.S. Venkataraman, J., in C.M.P. No. 7264 of 1967 on 21.7.1967. In C.M.P. No. 2371 of 1968, Ismail, J. (as he then was) modified the order of stay granted earlier restricting the stay to items 32 and 33 only. In other words, there was no stay in respect of other items. In C.M.P. No. 5449 of 1968, Alagiriswami, J., (as he then was) vacated the stay on 16.4.1968. That petition in C.M.P. No. 5449 of 1968 was filed by the present respondent in C.R.P. No. 1237 of 1986. An UP. Appeal was filed and an order of stay in respect of items 32 and 33 was passed pending disposal of the L.P. Appeal. In the meanwhile, A.S. No. 451 of 1967 filed by plaintiffs 1, 2 and 4 in respect of items 32 and 33 was dismissed. A.S. No. 451 of 1967 was disposed of on 14.7.1975. The respondent filed E.P. No. 9 of 1985 on 26.4.1985 out of which C.R.P. No. 1237 of 1986 has arisen for delivery of item No. 13. The contentions of the respondent are three fold, (1) the E.P. is barred by limitation, as it became enforceable on 18.8.1966; (2) no specific allotment of item 13 to defendants 8 and 9 was made and therefore the ninth defendant cannot seek delivery; and (3) item 13 was attached by Kamalambal Achi in O.S. No. 37 of 1958. The learned trial Judge held that the starting point of limitation is only from 14.7.1975, the date on which A.S. No. 451 of 1967 was dismissed by the High Court.
7. In C.R.P. No. 1238 of 1986, item 6 of A schedule was delivered and the revision petitioner who is the 4th defendant challenges the order on the ground that the execution petition which is filed on 16.8.1985 is clearly barred by the law of limitation as it was filed 19 years after 18.8.1966 the date of final decree.
8. The controversy is limited in scope. According to the revision petitioner time begins to run from 18.8.1966 and the execution petitions which are filed nearly 9 years after the final decree will be barred by limitation. In respect of C.R.P. No. 1237 of 1986, the learned Counsel for the revision petitioner pointed out that A.S. No. 451 of 1967 filed against the final decree in I.A. No. 1009 of 1962 in O.S. No. 103 of 1957 by plaintiffs 1, 2 and 4 was restricted to items 32 and 33 only and item 13 was not the subject-matter of the appeal and that even though originally interim stay of further proceedings in O.S. No. 103 of 1957 was granted in C.M.P. No. 7264 of 1967 by the High Court on 21.7.1967, the same was modified by the High Court in C.M.P. No. 2371 of 1968, restricting the stay to items 32 and 33 only and as there was no stay in respect of other items, the execution petitioner namely, the respondent in C.R.P. No. 1237 of 1986 had no impediment to file the petition for delivery of item 13 which was not the subject-matter of appeal and in respect of which there is no stay of delivery.
9. Per contra : the argument of the learned Counsel for the respondents is that the appeal A.S. No. 451 of 1967 was disposed of on 14.7.1975 and the E.Ps. filed on 26.4.1985 and 16.8.1985 are not barred by the law of limitation and the fact that the appeal is not concerned with item 13 or even in respect of item 6, will not in any way affect the starting point of limitation.
10. A number of authorities have been cited by the learned Counsel appearing for the revision petitioner. In Umayal Achi v. Ramanathan Chettiar (1979) 92 L.W. 599, a Division Bench of this Court, while dealing with Article 136 of the Limitation Act pointed out that the period of 12 years begins to run from the date when the decree becomes enforceable. The Division Bench clarified it in the following words:
The Parliament having thus made an express provision that time would begin to run for executing any decree from the date when it becomes enforceable, it means that an execution petition has to be filed within 12 years from the date of the pronouncement of the judgment.
It is not necessary to deal with the facts of the case. It is sufficient to point out that the learned Judges of the Division Bench held that the time when a decree or judgment becomes enforceable is the date when it is pronounced.
11. The other case referred to by the learned Counsel for the revision petitioner is State of Madras v. Madurai Mills . That decision dealt with the doctrine of merger. It was pointed out that 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 inferior Tribunal and. the other by a superior tribunal 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 appeal or revision contemplated by the particular statute. It was further pointed out that the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provision conferring the appellate or revisional jurisdiction. That was the general proposition of law expressed by the Supreme Court in that decision.
12. Gojer Bros. Ltd. v. Ratanlal Singh , was a case which arose from the West Bengal Premises Tenancy (Amendment) Act, 1968. The respondent in that appeal made an application under Section 17-D of that Act asking that the decree for possession passed against him be set aside, The District Munsif dismissed the application on the ground that the decree for possession passed by the trial Court had merged in the decree passed by the High Court and as the decree was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act, the application by the respondent was not maintainable. The respondent then filed a revision before the High Court against the order of the District Munsif and the High Court allowed the revision application, granted the application filed by the respondent under Section l7-D and directed the dismissal of the suit. The appellant then filed an appeal to Supreme Court by special leave. The Supreme Court pointed out that the judgment of the inferior Court, if subjected to an examination, by the superior Court ceases to have existence in the eye of law, and treated as being superseded by the judgment of the superior Court and in other words, the judgment of the inferior Court loses its identity by its merger with the judgment of the superior Court. But, in that case, it should be noted, the entire decree of the trial Court was taken in appeal to the first appellate Court and then to the High Court and the High Court dismissed the appeal on merits and in those circumstances the Supreme Court held that the decree of the trial Court merged with the decree of the High Court and since the decree of the High Court was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, Section l7-D of the Act of 1956 can have no application and therefore the decree of the High Court which is the only decree to be executed, cannot be set aside.
13. The other decision is the ruling of a single Judge of this Court reported in S.K. Yesudasan v. A. Grani (1980) 93 L.W. 303. That was a case where an execution petition was dismissed by Subordinate Judge on the ground that it was barred by limitation. The decree in question which was a preliminary decree was passed on 7th September, 1962. Costs were awarded in that suit. The petitioner filed an appeal against the preliminary decree, but it was dismissed on 14th October, 1978. The petitioner thereafter filed an execution petition for executing the decree against the defendant for costs. The E.P. was filed in the year 1977. The contention was that the petition is barred by limitation since 12 years have expired from the 7th September, 1962. The Subordinate Judge dismissed the execution petition. The learned single Judge took the view that whether the appeal related to the entire subject-matter or only to a part thereof, there can be only one decree and the decree that came up for execution is the decree passed in appeal. This decision helps the respondent rather than the petitioner. But, it is pointed out by the learned Counsel that the decision reported in Umayal Achi v. Ramanathan Chettiar (1979) 92 L.W. 599, has not been brought to the notice of the learned single Judge.
14. In Palaniammal v. Periasami , the learned Chief Justice, Madras, after referring to various decisions bearing on this question pointed out that the computation of period of limitation of 12 years must be from the date on which the appellate decree is made in case there is an appeal. He relied on a Full Bench decision of this Court in Krishnamachari v. Mangammal (1903) I.L.R. 26 Mad. 91. The learned Chief Justice pointed out that even if only a portion of the decree has been appealed against and portion has not been the period of limitation for an application to execute the portion not appealed against runs from the date of the decree on appeal. This is a complete answer to the contention of the learned Counsel for the revision petitioner. But the learned Counsel points out that before the learned Chief Justice the rulings in State of Madras v. Madurai Mills , and Gojer Bros. Ltd. v. Ratanlal Singh , have nor been cited. I may at once point out that the ruling in State of Madras v. Madurai Mills , and the ruling in Gojter Bros Ltd. v. Ratanlal Singh , do not run counter to the view taken by the learned Chief Justice.
15. Kali Prasad v. Bhagwat Prasad , was a case where a decree was obtained by the plaintiff against the judgment-debtor for a sum of Rs. 3,500 and odd. The decree was passed on 23.5.57. The plaintiffs were unable to realise any amount from the judgment debtor and therefore they filed a petition for attachment of certain properties. But a claim petition was filed by a third party under Order 21, Rule 58, C.P.C. The executing Court allowed the claim application. The decree-holder did not take any further steps in execution, but filed a suit under Order 21, Rule 63, C.P.C., against the claimant which was decreed on 6.8.1963. But the claimant filed an appeal against that decree and that was dismissed on 21.3.1970. Later, the decree-holder filed an execution application but that was dismissed for default on 9.12.1971. Thereafter, another execution application was filed on 18.1.1972. It is under these circumstances, the Division Bench of Patna High Court held that the decree-holder cannot be permitted to sit tight over the matter indefinitely and once the temporary bar to execution had come to an end, he ought to have applied for execution and the mere filing of an appeal by the claimant without any stay order was of no consequence and that the decree-holder cannot overcome the limitation and that his application is barred by limitation. Here, it should be noted that the decree-holder who obtained the money decree for Rs. 3,500, did not take any steps in execution. After the claim application in respect of the properties attached by him in pursuance of the money decree obtained against the defendant therein was allowed, the plaintiffs did not file an appeal, but however, filed a title suit under Order 21, Rule 63, C.P.C. which was ultimately decreed in their favour. The effect of the decree in the suit filed under Order 21, Rule 63, C.P.C., would be that the claimant had no title to the properties attached. This will not however help the decree-holder to save the execution petition filed by the decree-holder from the bar of limitation.
16. Devikant v. Shri Kant , has no relevancy to the facts of the present case. That case dealt with the question whether the date of decree is the date of judgment or whether it is the date on which the final decree is actually drawn. It was pointed out in that case that the date of decree is the date of judgment and not the date on which the final decree was actually drawn.
17. Ouseph v. Lona , is a judgment of a learned single Judge of Kerala High Court pointing out the repeal of Section 48, C.P.C., by Section 28 of the Limitation Act 1963 and the principle of Section 48 being embodied in Article 136 of the Limitation Act which provides for 12 years period of limitation for execution of a decree.
18. In Biswapati v. Kensington Stores , a single Judge of the Calcutta High Court held that the time required for obtaining certified copy of decree cannot be excluded for computing limitation as the period of 12 years is long enough to execute a decree and as Article 136 of the Limitation Act has set a new deadline beyond which no application for execution of a decree can be made.
19. In P. Ramachandriah v. Seshamma , the learned Judge of the Andhra Pradesh High Court had to consider the question of merger of the decree of the first Court with the decree of the appellate Court. The learned Judges pointed out that Article 136 of the Limitation Act substantially reproduces the repealed Section 48, C.P.C. and replaces Article 182 of the old Limitation Act, and Article 136 says that the period of limitation begins to run when the decree or order become enforceable, but it does not say when it becomes enforceable. The learned Judges interpreted that the meaning of the words from the date of decree sought to be executed1 in Section 48, C.P.C., and the words where the decree or order becomes enforceable in Article 136 is practically the same and they finally held that under Article 136 of the present Limitation Act, the period of limitation can be reckoned from the appellate decree even though there is no stay in the appeal.
20.Reference has already been made to the judgment of Balasubrahmanyan, J., in K. Yesudasan v. Grant (1980)93 L.W. 303, where the learned Judge held that under Article 136 of the Limitation Act, time has to be computed from the date of appellate decree.
21. In Krishnamachariar v. Mangammal, I.L.R. (1903) 26 Mad. 91, a Full Bench of this Court stated that under Article 179 of Schedule II of the Limitation Act, 1877, the period of limitation for application to execute a portion not appealed against runs from the date of decree on appeal. This is the authority for the proposition that in a case where a portion of the decree has been appealed against and a portion has not been appealed against, the period of limitation for application for execution of the portion not appealed against runs from the date of decree on appeal.
22. In Kunjammal v. Krishna Chettiar : , a Division Bench of this Court took the view that when a decree Is taken in appeal to a higher court, the decree passed in appeal supersedes that of the court below, and becomes -a decree in the suit itself and therefore that is the only decree which is capable of execution and the period of limitation for execution would run from the date of that decree and that it would make no difference whether the person against whom execution is sought is ‘a party to the appeal or not, any more than whether the appeal related to the entire subject-matter of the suit or only to a part thereof. The learned Judges of the Division Bench followd the ruling in Krishnamachari v. Mangammal (1903) I.L.R 26 Mad. 91, in arriving at this conclusion.
23. Nacharammal v. Veerappa Chettiar (1946) 1 M.L.J. 128 : 59 L.W. 103 : A.I.R. 1946 Mad. 231, is a case in which the plaintiff obtained a decree in a suit which was confirmed in appeal subject to slight modification. Both the parties preferred second appeals which were ultimately dismissed by High Court. The decree-holder filed an execution application within 12 years from the date of dismissal of the second appeal. It was contended that the execution application was barred under Section 48, C.P.C. It was held that the decree to be executed is that of the appellate court of final jurisdiction and as the period of 12 years under Section 48 has to be computed from the date of such appellate decree, the application was in time.
24. S.P. Choudhury v. S.C. and Co. , was a case where a decree for costs passed on 1.5.1959 was confirmed by the appellate court on 7.6.1962 and an application for execution filed on 2.5.1972. It was held to be not barred by limitation under Article 136, as the decree of the trial court has merged in the decree of the appellate court dated 7.6.1962 and the starting point of limitation for application for execution of decree for costs is the date of appellate decree and not the date of the decree of the trial Court.
25. A Division Bench of this Court in Arumugham v. Kalyanasundaram , also followed the view taken in Krishnamachari v. Mangammal (1903) I.L.R. 26 Mad. 91, that so long as there is an appeal from a portion of a decree, the date of the appellate decree would be the starting point of limitation under Article 182(2) of the Limitation Act, 1908 even in regard to the execution of the first, ‘court’s decree in respect of the portion not appealed against.
26. Their Lordships of the Judicial Committee in Saiyid Jawad Hussein v. Gendan Singh 51 M.L.J. 881 : (1926) 24 L.W. 394 (P.C.), took the view that under Article 181 of the Limitation Act, 1908, time for limitation would run in a mortgage suit not from the date fixed in the original preliminary decree for payment, but from the date of the subsequent decree of the appellate court which dismissed the appeal, the latter being the only final decree.
27. On a conspectus of the entire case laws referred to above, it would be seen that a decree passed in appeal supersedes the decree of the court below and becomes the decree in the suit itself, and that is the only decree which is capable of execution. As pointed out by the learned Judges of the Division Bench of this Court in Kunjammal v. Krishna Chettiar (1953) 2 M.L.J. 184 : 66 L.W. 558 : 1953 M.W.N. 451, it would make no difference whether the person against whom execution is sought is a party to the appeal or not, any more than whether the appeal related to the entire subject-matter of the suit or only to a part thereof. The raison detre for this, principle is stated by Bhashyam Aiyangar, J., in Krishnamachariar v. Mangammal (1903) I.L.R. 26 Mad. 91, thus-
When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either In whole or in part, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that a matter is litigated both in the Court of first instance and again, though only in part, in the Court of appeal cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of appeal. There cannot be two final decrees in such a suit, one by the court of first instance and the other by the court of appeal…If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against; the confirmation is not limited to the portion appealed against.
This Full Bench ruling has been followed by this Court and in the face of this ruling of the Full Bench of this Court, it is not necessary to consider some of the decisions of the Patna High Court which strikes a discordant note. In the instant case, it is not disputed that execution petitions are within time from the date of appellate decree in A.S. No. 451 of 1975 passed on 14.7.1975. E.P. No. 9 of 1985 was filed on 26.4.1985 and E.P. No. 15 of 1985 was filed on 16.8.1985. Therefore, the execution petitions filed are within time.
28. In regard to the other contentions, namely, that there was no specific allotment of item 13 to third defendant and defendants 8 and 9, it must be pointed out that the 9th defendant in his reply affidavit has stated that Clause 11 of the final decree allots half of the total extent of item 13 and under Clause 12 he is entitled to the northern half which is the remaining portion of the land available after the sale by the third defendant to third parties.
29. In regard to the next contention that item 13 was attached by one Kamalambal in O.S. No. 37 of 1958 and E.P. No. 107 of 1967, it was pointed out by defendants 8 and 9 in the reply affidavit that they were not parties to E.P. No. 107 of 1967, nor were they judgment-debtors in O.S. No. 37 of 1958. These contentions of the petitioner, therefore, should fail.
30. The civil revision petitions are dismissed with costs.