# Chandi Prasad and others v. The Addl District & Sessions Judge and others

- **Citation:** (2001) 2 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-11-22
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandi-prasad-and-others-v-the-addl-district-sessions-judge-and-others-39839
- **Pages:** 5

## Text

2All] Chandi Prasad and others V. The Addl..District & Sessions Judge and others

150

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4. A perusal of the F.I.R. shows that
the allegations are that petitioner no. 2
Vijay Pratap Singh is running an allegedly
non-existent school alongwith his son,
petitioner no. 1 Shri Prakash Singh and
they have embezzled Rs.1,28,000/- of the
scholarship
fee
of
scheduled
caste
students. It is shocking that though there
is no school in existence yet the
scholarship funds are being given to a
non-existent school, and it is only after an
enquiry
by
the
B.D.O.,
Bildiaganj,
A.D.M. Azamgarh and the D.I.O.S. that
this great fraud was discovered. What
'tehalka' type scandles are happening at
the national level mini tehalka scandals in
thousands of cases are accurrind at the
lower level. This is not an isolated case
but a large number of cases are coming
before this Court against Principals and
teachers
etc.
who
embezzled
the
scholarship fees and other school funds.
The principals and teachers are supposed
to be ideals for the students but today they
are often regarded as thieves. This just
shows the level of degradation to which
this country has sunk.

5. We are not inclined to interfere in
this matter as the allegations in the F.I.R.
certainly discloses committing of an
offence.
The
Petition
is
dismissed.
However the observation made herein
will not influance the court hearings the
bail application or the trail.

6. We were inclined to pass a
detailed direction to the Chief Secretary to
hold
a
thorough
enquiry
into
the
allegations where the funds were issued to
non-existent institutions and where the
school fees, funds etc. were embezzled by
the Principals, managers or teachers of the
educational
institution
but
we
are
informed by Sri Arvind Tripathi learned
Addl. Govt. Advocate that in another writ
Petition such enquiry has already been
ordered by another bench of the court and
the enquiry is still going on. Hence it is
not necessary to pass a similar order for
holding enquiry in the case.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001

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AIR 1999 SC 738

By the Court

1. The writ Petition is directed
against
the
order
dated
22.11.2000
whereby the appellate court held that the
execution
application
filed
by
the
contesting respondents was within time.

2. Briefly stated that facts are that
the petitioners filed suit no. 260 of 1959
for
partition
against
defendantrespondents no. 2 to 8. The Court passed a
preliminary decree on 25.4.1962. The
final decree was prepared on 7.5.1968.

3.

The
defendant-respondents
applied for execution of the final decree
on 6.8.1968, which was registered as
Execution Case No. 279 of 1968. The
plaintiff-petitioners filed Civil Appeal No.
502 of 1968 against the judgement of the
trail court. The appeal was dismissed on
21.3.1969.
The
petitioners
preferred
Second Appeal against this order. The
High Court allowed the appeal and
remanded the case to the appellate Court
to decide the appeal afresh. The lower
appellate Court after remand of the
matter, again dismissed the appeal on
4.1.1974. During the pendency of the
above appeal the execution application
no. 279 of 1968 was rejected by the
executing court on 19.4.1971.

4. The petitioners preferred Second
Appeal No. 281 of 1974 against the
judgement of the lower appellate court
dated 4.1.1974. The second appeal was
dismissed
by
the
High
Court
on
18.4.1985. The decree in pursuance of the
judgement of the High Court was drawn
on 30.10.1986.

5. The defendant-respondents filed
application for execution of the decree,
passed by this Court, on 26.3.1997. The
petitioners
filed
objection
to
this
application on the ground that it was
barred by the limitation. The executing
court rejected the application vide order
dated 1.5.1999 on the ground that the
application was barred by time. The
respondents preferred appeal against the
said order before the court below.
Respondent no. 1 has allowed the appeal
by the impugned order dated 21.11.2000
holding that the execution application
filed by the defendant-respondents was
within time.

6. I have heared Shri Pankaj Mithal
learned counsel for the petitioners and Sri
Pramod Kumar Jain learned counsel for
the contesting respondents.

7. The final decree in the partition
suit no. 260 of 1959 was prepared on
7.5.1968. The provisions of Limitation
2All] Chandi Prasad and others V. The Addl..District & Sessions Judge and others

152
Act 1963 will be applicable for the
purpose of counting the limitation. Article
136 shall be applicable for submitting
execution application before the executing
court. Article 136 reads as under:

"136.For
the
execution
of
any
decree
(other than
a
decree
granting a
mandatory
injunction)
or order or
any
civil
court.
Twelve
years
When the decree
or order becomes
enforceable
or
where the decree
or any subsequent
order directs any
payment
of
money
or
the
delivery of any
property
to
be
made at a certain
date
or
at
recurring periods
when default in
making
the
payment
of
delivery in respect
of
which
execution
in
sought,
takes
place:

 Provided
that
an Application for
the Enforcement
or Execution of a
Decree granting a
Perpetual
injunction
shall
not to subject to
any
period
of
limitation.

8. The contention of the learned
counsel for the petitioner is that lower
appellate court had dismissed the appeal
on 4.1.1974. The petitioners preferred
Second Appeal No. 481 of 1974 against
the judgement of the lower appellate
court. The High court dismissed the
second appeal on 18.4.1985. the High
Court had not passed any order staying
the operation of the decree passed by the
courts below and therefore the limitation
started running from 4.1.1974 for filing
the execution application and as the
execution
application
was
filed
on
26.3.1997 it was barred by time.

9. The question is whether the
decree
drawn
in pursuance of the
judgement of the High Court passed on
18.4.1985 shall be taken as the date when
the decree becomes enforceable or the
date of the judgement of the lower
appellate court delivered on 4.1.1974.
Similar controversy was raised in M/s
Banshidhar Durga Dutta Vs. Loonkaran
Sethia,
1983
ALJ 557, where the
execution application was filed after the
judgement of the appellate court, the
Division Bench of this Court held that the
decree becomes enforceable after the
judgement of the lower appellate court. In
this case the appeal was dismissed as not
pressed and the judgement debtor raised
the contention that as the appeal was not
pressed and the judgement was affirmed
and as there was no stay of the operation
of the decree of the trail Court, the
execution application became time barred.
This contention was not accepted on the
reasoning that once the appeal has been
filed against the decision of the lower
appellate court it is open to the decreeholder to wait for the decision of the
appeal and thereafter to file application
for execution of the decree. It was
observed:
"It follows from the law laid down
by the Privy Council that if the court's
order furnishes a cause of action then
similarly the lower court's decree also
furnishes a cause of action. The time from
which the limitation begins to run is the
point when the decree or order becomes
enforceable.
The
expression
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

153
"enforceable"
means
"to
put
into
execution, to cause to take effect". In case
of a decree of the trail court being
affirmed, the appellate decree becomes
enforceable and that can be put into
execution.
The
judgement
debtors's
contention that since there was no stay
order, the decree holder could not take
advantage of the time spent in prosecution
of the appeal, does not appeal to us to be
tenable. A judgement-debtor does not
lose by the decree holder's not putting his
decree into execution. The decree holder
has the choice to wait for the decision of
the appeal. The law does not cast any duty
on him to put the decree into execution
immediately after its being passed it had
not been denied that in case of a decree
being modified or varied, the period of
limitation would start from the date of
passing of the decree in the appeal. If that
so, there is no reason to take contrary
view in respect of a decree which is
confirmed in appeal. There is no logic in
holding a decree of the latter category to
have become barred by time if the
execution of the same is not made
immediately after its being passed by the
trail court. If the principle of merger
applies, the decree of the trail court would
get merged with that of the appellate court
and it is that decree which will become
enforceable".

10. The principle of doctrine or
merger was applied by the Supreme Court
in Kunhayammed and others Vs. State of
Kerala and another, AIR 2000 SC 2587. It
was clarified that so far as principle of
merger is concerned, on principle there is
no distinction between order or reversal or
modification and order of confirmation
passed by the appellate court. As in all the
three cases the order passed by the lower
authority shall merge in the order passed
by the appellate authority whatsoever be
its decision - whether of reversal or
modification or only confirmation. The
Court
relied
upon
the
following
observation of the Supreme Court in UJS
Chopra Vs. State of Bombay, AIR 1955
SC 633:

"A judgement pronounced by a High
Court in exercise of its appellate or
revisional jurisdiction after issue of a
notice and a full hearing in the presence
of both the parties would replace the
judgement of the lower court, thus
constituting the judgment of the High
Court the only final judgement to be
executed in accordance with law by the
Courts below".

11. The learned counsel for the
respondents has placed reliance on the
decisions Ramlal and other Vs. Rewa
Coalfields Ltd., AIR 1962 SC 361, and
Calcutta
Municipal
Corporation
Vs.
Pawan Kumar Saraf, AIR 1999 SC 738,
wherein the Apex Court laid down the
principles which should be taken into
consideration
while
deciding
an
application to condone the delay. These
decisions have no application to the facts
of the present case.

12. In view of the above the
application filed by defendant respondents
for execution of the partition decree was
within time as it was filed within 12 years
from the date of the judgement of the
High Court in Second appeal referred to
above.

The writ Petition fails and is hereby
dismissed.
2All] Jitendra alias Jeetu V. D.M., Gautambudh Nagar and another

154
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By the Court

1. Heard learned counsel for the
petitioner
and
learned
Government
Advocate. The petitioner has challenged
the impugned notice dated 25.1.2001,
under Section 3(1) of the U.P. Control of
Goondas Act, 1971, a copy of which has
been annexed as Annexure-1 to the writ
Petition.

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