# Rakesh Kumar & Anr v. Chhotey Lal & Ors

- **Citation:** (2023) 7 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** Matter Under Article 227 No. 5364 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-anr-v-chhotey-lal-ors-50635
- **Pages:** 22

## Headnote

Civil Law - Limitation Act, 1963-Article
136- Suit for specific performance-suit decreedappeal and second Appeal dismissed-decree for
specific relief attained finality- application for
814 INDIAN LAW REPORTS ALLAHABAD SERIES
execution of the decree was moved on
21.07.2011 -decree to be executed was the
original decree dated 02.06.1975- and the
execution
application
was
instituted
on
21.07.2011-the
judgment
debtor
moved
objection of it being time barred since more
than 12 years passed since the decree is
passed- limitation has to be reckoned from the
date of the decree of the Appellate Court- even
if the date of the order of this Court dismissing
the second appeal in limine is ignored- The
appellate decree was passed on 31.03.2011 and
the
execution
application
was
made
on
21.07.2011, which was well within the limitation
of 12 years under Article 136 of the Act of 1963the execution is competent and must proceed.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,964 of 75,787. This is a partial read: ask again with offset=39964 for what follows._

7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
813
(Tehsil Vyavasaye Ki Yojana Part II)
facing towards Bhagat Singh Road. As the
petitioner-Rohit Lal and his son Raj Kumar
both of them were having two adjacent
shops (G2 and G3) at ground floor facing
towards Bhagat Singh Road and both of
them were running the same business,
therefore,
Muzaffarnagar
Development
Authority by the impugned order dated
18.11.2000 cancelled the allotment of Shop
No.G-3 in favour of petitioner and retained
the shop of petitioner no.1/1 so as to adjust
other displaced shop keepers at ground
floor. From perusal of impugned order, it
appears that it was passed on the ground
that there is unavailability of shops facing
towards Bhagat Singh Marg and petitioner
as well as his son were having two adjacent
shops at ground floor facing towards
Bhagat Singh Marg and both of them were
running watch selling business. Though,
there is no allotment order regarding Shop
No.G-3 in favour of petitioner-Rohit Lal on
record but from the perusal of note sheet
produced
before
the
court
by
Muzaffarnagar Development Authority as
well as from the impugned order, it appears
that the Shop No.G-3 was allotted to
petitioner-Rohit Lal. Mere allotment of
shop does not give unfettered right to
execute the sale deed of the shop in
question in favour of petitioner. Allotment
in favour of petitioner-Rohit Lal at the most
can be equated to agreement to sell. It does
not give absolute right to petitioner to
compel the municipal authority to sell that
shop to him. On the other hand after
allotment of shop in 2002, sale deed
regarding Shop No.G-3 was also executed
in favour of respondent no.4 on 22.03.2003
which absolutely transferred the ownership
in favour of respondent no.4 and who after
obtaining the possession, established his
business of watch selling. Considering the
equity and bonafide conduct of respondent
no.4 in purchasing the shop without
knowledge
of
the
present
litigation,
quashing the order dated 18.11.2000 will
disturb
the
established
shop of
the
respondent no.4. Even otherwise, after the
death of petitioner-Rohit Lal, the right of
the Rohit Lal has been succeeded by his
son
Raj
Kumar
(Petitioner
No.1/1),
therefore now, Raj Kumar (Petitioner
No.1/1) who has been running G-2 shop
and other purchased shops during the
pendency of present petition on the ground
floor, will not suffer irreparable loss or
prejudice.

14. In view of the above fact, we do
not find it fit to interfere in the impugned
order dated 18.11.2000.

15. Accordingly, the writ petition is
dismissed.
----------
(2023) 7 ILRA 813
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 5364 of 2018

Rakesh Kumar & Anr. ...Petitioners
Versus
Chhotey Lal & Ors. ...Respondents

Counsel for the Petitioners:
Ms. Tanya Pandey, Sri Anil Tiwari (Sr. Advocate)

Counsel for the Respondents:
Sri Anant Ram Dubey, Sri Anil Kumar, Sri Mohit
Gautam, Sri Sudhir Kumar Kulshrestha, Sri
Shobhit Dube

Civil Law - Limitation Act, 1963-Article
136- Suit for specific performance-suit decreedappeal and second Appeal dismissed-decree for
specific relief attained finality- application for
814 INDIAN LAW REPORTS ALLAHABAD SERIES
execution of the decree was moved on
21.07.2011 -decree to be executed was the
original decree dated 02.06.1975- and the
execution
application
was
instituted
on
21.07.2011-the
judgment
debtor
moved
objection of it being time barred since more
than 12 years passed since the decree is
passed- limitation has to be reckoned from the
date of the decree of the Appellate Court- even
if the date of the order of this Court dismissing
the second appeal in limine is ignored- The
appellate decree was passed on 31.03.2011 and
the
execution
application
was
made
on
21.07.2011, which was well within the limitation
of 12 years under Article 136 of the Act of 1963the execution is competent and must proceed.

W.P. dismissed. (E-9)

List of Cases cited:

1. Ratansingh & ors.Vijaysingh & ors., (2001) 1
SCC 469

2. Shyam Sundar Sarma Vs Pannalal Jaiswal &
ors., (2005) 1 SCC 436

3. Ram Bachan Rai & ors.Vs Ram Udar Rai &
ors., (2006) 9 SCC 446

4. Bimal Kumar & anr.Vs Shakuntala Debi & ors.,
(2012) 3 SCC 548

5. Surinder Pal Soni Vs Sohan Lal (Dead) through
Legal Representatives, (2020) 15 SCC 771

6. Sajja Chimpiraiah Vs Gaddam Venkata
Subbaiah (died) & ors., AIR 2004 AP 528

7. Chandi Prasad & ors.Vs Addl. Dist. and
Sessions Judge, Hapur & ors., AIR 2001 All 229

8. Chandi Prasad & ors. Vs Jagdish Prasad &
ors., (2004) 8 SCC 724

9. Shanthi Vs T.D. Vishwanathan Vs & anr.,
(2019) 11 SCC 419

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a judgment-debtor's petition
under Article 227 of the Constitution
arising out of a part rejection of his
application under Section 151, Code of
Civil Procedure, 1908 (for short, 'the Code')
by the Executing Court vide order dated
05.05.2018,
holding
the
execution
application not barred by time, and the
order of the learned District Judge, Etah
dated 28.05.2018, affirming the said order
in Revision.

2. Briefly stated, the facts relevant for
decision of this petition are that one Chhote
Lal instituted Original Suit No. 466 of 1969
for specific performance of contract against
Maha Ram, saying that the latter had
entered into an agreement to sell with the
plaintiff on 14.08.1966, covenanting to sell
Plot no. 442 admeasuring 4.86 acres,
situate
at
village
Birauchi,
Paragana
Pachalana, District Etah. The suit was
instituted before the ex-Court of Munsif,
Kasganj, saying that Maha Ram had agreed
to sell the suit property to the plaintiff in
terms
of
the
suit
agreement
dated
14.08.1966 for a total sale consideration of
Rs. 2500/-. It was covenanted between
parties that Maha Ram, who was arrayed as
defendant no. 1 to the suit, will execute a
sale deed in favour of the plaintiff within
three months after securing bhumidhari
rights. The plaintiff had paid an earnest of
Rs. 1000/-, and, defendant No. 1 delivered
possession to the plaintiff over the suit
property. Maha Ram avoided execution of
the covenanted sale deed in favour of the
plaintiff on various pretexts, though the
plaintiff
remained
ready
and
willing
throughout to perform his part of the
contract. Maha Ram stealthily executed a
sale deed, conveying the suit property to
one Har Prasad, arrayed as defendant no. 2
to the suit on 13.06.1969. Defendant no. 2
to the suit knew about the prior agreement
in favour of the plaintiff, as also the fact of
possession being with the plaintiff. The suit
7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
815
aforesaid was duly contested by both the
defendants and decreed for the relief of
specific performance by the Munsif,
Kasganj vide judgment and decree dated
02.06.1975. The said decree was appealed
by the second defendant to the suit, Har
Prasad before the learned District Judge,
Etah, arraying Maha Ram as a proforma
respondent. The appeal, upon assignment,
came on for hearing before the Additional
District Judge, Court No. 5, Etah on
31.03.2011, when it was dismissed and the
decree of the Trial Court affirmed. A
second appeal from the appellate decree
was carried to this Court, being second
appeal No. 468 of 2011. The Second
Appeal, however, was dismissed by this
Court under Order XLI Rule 11 of the Code
vide an order dated 24.05.2011. It is
common ground that the decree for specific
performance has attained finality between
parties.

3. An application for execution of the
decree was moved on 21.07.2011, that is to
say, after the Lower Appellate Court had
affirmed the Trial Court and this Court also
had summarily rejected the second appeal
preferred by Har Prasad, the purchaser and
another. In the execution application that
was filed, in Column No. 3, the date of the
decree to be executed was mentioned as
02.06.1975, that is to say, the date of the
original decree. In Column No. 4, it was
mentioned that a first appeal from the
original decree was filed, being First
Appeal No. 114 of 1975, which was
dismissed by the learned District Judge,
Etah on 31.03.2011. It is mentioned that
Second Appeal No. 468 of 2011 too was
carried before the High Court, which was
dismissed vide order dated 24.05.2011.
Now, in the execution case registered on
the basis of the execution application dated
21.07.2011, bearing Execution Case No. 2
of 2011, an application has been filed on
behalf of judgment-debtors nos. 2/1 and
2/2, bearing paper no. 54-EC-2, saying that
the execution application is ex facie barred
by time, because it seeks execution of the
decree dated 02.06.1975 passed in Original
Suit No. 466 of 1969 and presented far
beyond the prescribed period of limitation
of 12 years, under Article 136 of the
Schedule appended to the Limitation Act,
1963 ('the Act of 1963' for short). The
limitation was sought to be reckoned from
the date of the original decree by the
judgment-debtors
nos.
2/1/
and
2/2,
calculating time between the original
decree dated 02.06.1975 passed in the suit
and the date of institution of the execution
application
i.e.
21.07.2011.
Another
objection
raised
through
the
same
application, bearing paper no. 54-EC-2, is
to the effect that the heirs of judgmentdebtor no. 1, Maha Ram, were not properly
impleaded, inasmuch as on the date of
institution of the execution application, the
heirs and LRs of Maha Ram were
judgment-debtors nos. 1/2/1 Satya Prakash
and 1/2/2 Basdev, shown to be minors in
the application, but their guardian ad litem,
through whom they were to be represented,
was not impleaded, in compliance with the
provisions of Order XXXII Rule 3 of the
Code. Another facet of this objection and
more fundamental in nature that was raised
was that after the death of judgment-debtor
no. 1 Maha Ram, who was defendant no. 1
to the suit, his heirs and LRs were not
substituted in the plaint.

4. The learned 1st Additional Civil
Judge (Junior Division), Kasganj, the
successor of the ex-Court of Munsif,
Kasganj before whom the application,
paper No. 54-C-2, came up for hearing,
sustained it in a very minor part of the
objection
about
the
impleadment
of
816 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment-debtors nos. 1/2/1 Satya Prakash
and 1/2/2 Basdev. It was allowed to the
extent that the decree-holder ought to carry
out
amendment
to
the
execution
application, indicating the age of these
minor judgement-debtors on the date of
presentation of the execution application
and implead them through their guardian ad
litem within a week. The other facet of this
objection about impleadment that the said
defect went much farther, as the heirs and
LRs of defendant no. 1 to the suit had not
been substituted in the plaint, was not
accepted because his heirs and LRs were
duly substituted in the second appeal, after
defendant no. 1/2 Chando Devi died, who
was substituted in place of original
defendant no. 1 Maha Ram. The Executing
Court held this to be a minor irregularity.

5. The principal objection that was
canvassed through the application, paper
no. 54-EC-2, was the one about limitation,
briefly spoken of in the opening part of this
judgment. The objection precisely was that
since the decree to be executed was the
original decree dated 02.06.1975 and the
execution application was instituted on
21.07.2011, it was way beyond the
prescribed period of limitation under
Article 136 of the Schedule, appended to
the Act of 1963. This, no doubt, is a
substantial objection, as it goes to the root
of the Executing Court's jurisdiction. The
Executing Court rejected this objection,
holding, by the order impugned dated
05.05.2018, that it is settled law that the
decree of the original Court merges into
that of the Appellate Court and the
execution is of the Appellate Court's
decree. It was remarked that since this
Court had passed a decree on 24.05.2011 in
a second appeal, what was to be executed
was the decree of this Court dated
24.05.2011. It was held that limitation
would run from 24.05.2011, and not from
02.06.1975. The judgment-debtors nos. 2/1
and 2/2, who are the two petitioners here,
carried a revision to the District Judge,
Kasganj (Kasganj being carved out as a
new District out of the former territory of
the
original
District
Etah,
pending
proceedings), who summarily dismissed the
revision by the impugned order dated
28.05.2018,
holding
that
the
order
impugned passed by the Executing Court
was an interlocutory order, which did not
fall within the definition of a 'case decided'
within the meaning of Section 115 of the
Code. It was also held that no injury was
caused to the petitioners on account of the
impugned order, rendering the revision fit
to be summarily dismissed.

6. Aggrieved by the orders of the
Revisional Court and the Executing Court,
judgment-debtor nos. 2/1 and 2/2 have
preferred this petition under Article 227 of
the Constitution.

7. Heard Mr. Anil Tiwari, Senior
Advocate assisted by Ms. Taniya Pandey,
learned Counsel for the petitioners, Mr.
Shobhit Dube, Advocate holding brief of
Mr. Anant Ram Dube and Mr. Anil Kumar,
learned Counsel appearing on behalf of
respondent No. 1. No one has appeared on
behalf of respondent Nos. 2 to 6.

8. Mr. Anil Tiwari, learned Senior
Advocate has strenuously argued before
this Court that what is being executed is the
original decree dated 02.06.1975 passed by
the Trial Court and it was never stayed
pending the first appeal or in second
appeal. It was, thus, an enforceable decree
with effect from 02.06.1975. He submits
that since the decree was never stayed, the
prescribed period of limitation under
Article 136 of the Schedule appended to the
7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
817
Act of 1963 i.e. 12 years has to be reckoned
with effect from 02.06.1975, the limitation
running continuously and never arrested.
He has invited this Court's attention to
Article 136 of the Schedule, appended to
the Act of 1963, which reads:

THE SCHEDULE

(PERIODS OF LIMITATION)

[See sections 2(j) and 3]

Description
of suit
Period of
limitation
Time from
which
period
begins
to
run
136. For
the
execution of
any decree
(other than a
decree
granting
a
mandatory
injunction)
or order of
any
civil
court.
Twelve
years
When
the
decree
or
order
becomes
enforceabl
e 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 or
delivery in
respect of
which
execution
is
sought,
takes
place:

Provided that an application for the
enforcement or execution of a decree
granting a perpetual injunction shall not be
subject to any period of limitation.

 (emphasis by Court)

9. He has emphasized the words
'when the decree or order becomes
enforceable' and says that the decree here is
not one regarding which commencement of
the period of limitation is postponed to a
particular event, like a decree directing any
payment of money or the delivery of any
property to be made at a certain or future
date. The decree here passed in the suit,
according to Mr. Tiwari, became executable
forthwith, that is to say, on the date of the
decree. Time, according to the learned
Senior
Advocate,
would
therefore,
commence
on
02.06.1975,
running
continuously from the said date until
exhaustion of the period of limitation on
the expiry of 12 years. He emphasizes that
an order of stay, if there were one pending
appeal, would surely have arrested time
from running. But, it was never there. He
has urged that the decree of the lower
Appellate Court is a decree of dismissal
and affirmation, and not an executable
decree. It is for the said reason that the
execution application seeks in Column No.
3, execution of the decree dated 02.06.1975
passed by the Trial Court. The learned
Senior Advocate submits that time would
not run from the date of the decree of the
lower Appellate Court, because that is not
an operative decree at all. He further
submits that so far as the order of this Court
818 INDIAN LAW REPORTS ALLAHABAD SERIES
is concerned, that too affirms the decrees
passed by the Courts below, and for that
reason, is not an executable decree from the
date of which limitation would run. In the
submission of the learned Senior Advocate,
the Executing Court committed a manifest
error of law in holding that limitation to
execute the decree under Article 136 of the
Schedule appended to the Act of 1963,
would commence from this Court's order
dated 24.05.2011 passed in the second
appeal.

10. In support of his submission that
limitation in this case would not be arrested
and run continuously from the date of the
original decree, because there was no stay
in appeal granted by the Lower Appellate
Court or this Court in second appeal, Mr.
Tiwari has relied upon the decision of the
Supreme
Court
in
Ratansingh
v.
Vijaysingh and others, (2001) 1 SCC 469.
He has next placed reliance upon a decision
of the Supreme Court in Shyam Sundar
Sarma v. Pannalal Jaiswal and others,
(2005) 1 SCC 436 and further upon the
authority of Ram Bachan Rai and others
v. Ram Udar Rai and others, (2006) 9
SCC 446. Also placed reliance upon by the
Senior Advocate for the petitioners is the
decision of the Supreme Court in Bimal
Kumar and another vs. Shakuntala Debi
and others, (2012) 3 SCC 548. The thrust
of the submission, as already noted on the
foot of all these authorities, is that in the
absence of a stay of execution of the decree
passed by the Trial Court in appeal,
limitation would continuously run. Before
the close of his submissions, Mr. Anil
Tiwari has emphasized that the learned
District Judge has committed a manifest
illegality
in
rejecting
the
revision
summarily, holding the order impugned to
be an interlocutory order, and not one that
is a 'case decided', within the meaning of
Section 115 of the Code. It is urged that the
learned Judge has, on completely wrong
and flawed premise, failed to exercise
jurisdiction vested in him, because the
settled position of the law is that where an
order challenged in revision is one, if
reversed, would result in a final decision of
the suit or other proceedings, it can never
be
regarded
as
interlocutory.
Here,
according to Mr. Tiwari, if the order of the
Executing Court were reversed and the
execution application held barred by time,
it would certainly result in termination of
proceedings.

11. Mr. Shobhit Dube, learned Counsel
for respondent no. 1, in reply, has supported
the impugned orders. He submits that there
cannot be any doubt that what was to be
executed was the decree of the lower
Appellate Court, wherein the decree of the
Trial Court stood merged. The lower
Appellate Court having passed its decree
on 31.03.2011, the execution application
instituted
on
21.07.2011
is
within
limitation. Mr. Dube has placed strenuous
reliance in this regard upon the holding of
the Supreme Court in Surinder Pal Soni
vs. Sohan Lal (Dead) through Legal
Representatives, (2020) 15 SCC 771. He
has also placed reliance upon a decision of
the Andhra Pradesh High Court in Sajja
Chimpiraiah
vs.
Gaddam
Venkata
Subbaiah (died) and others, AIR 2004 AP
528.

12. Upon hearing learned counsel for
the parties, this Court must say that the
facts here are not in dispute. As already
remarked, the suit for specific performance
was decreed on 02.06.1975 and an appeal
carried by the predecessor-in-title of the
judgment-debtor-petitioners was dismissed
by the Additional District Judge on
31.03.2011. A second appeal preferred by
7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
819
the petitioners' predecessor was summarily
dismissed by this Court under Order XLI
Rule 11 of the Code vide order dated
24.05.2011. Columns Nos. 3 and 4 of the
execution application moved on 21.07.2011
would be relevant to refer to. These are
extracted below:

3. डडक्री का डदनांक
2.6.1975
4. क्या डडक्री के डवरूद्ध
कोई अपील योडित हुई?
िी हााँ. (1) प्रथम अपील संख्या
114/75हर प्रसाद बनाम् छोटे
लाल न्यायालय डिला िि एटा
में योडित हुई िो डदनाक
31.3.2011 को िाररि हुई।
(2)- डद्वतीय अपील संख्या
468 / 11 हर प्रसाद बनाम्
छोटे लाल आडद माननीय उच्च
न्यायालय में योडित हुई िो
डदनांक 24.5.2011 को वाद
सुनवाई डनरस्त हुई।

13. Though in Column no. 3, the date
of decree to be executed is mentioned as
that of the original decree, but in Column
No. 4, the decree with its full particulars
passed in the first appeal and event in the
second appeal, with all its particulars are
mentioned. In the opinion of this Court, the
mere mention of the original decree in
Column No. 3 as the decree to be executed
would not alter the substance of the
execution application, which makes ample
reference to the decree of the Lower
Appellate Court also.

14. It is a salutary principle of law that
the decree is only one. If a decree passed in a
suit by the Court of the first instance is
challenged in appeal and affirmed, it is the
appellate decree that alone would be the
'ruling decree', as it is called. The appellate
decree, even if a decree of affirmation, saying
nothing more than that the (operative) decree
of the Court of the first instance is affirmed,
and the appeal dismissed, would yet be the
decree that alone would be executed. The
decree of the Trial Court, howsoever much it
may be operative in nature, will always
merge in the superior Court's decree, which
then would express all its directions by just a
word of affirmation.

15. So far as a second appeal is
concerned, it is technically an appeal from the
appellate decree. It was mooted on behalf of
respondent No. 1 by Mr. Dube that limitation
would be reckoned from the date of this
Court's order dismissing the appeal under
Order XLI Rule 11 of the Code. This need
not be gone into, because on the facts here,
that question is not necessary to decide. The
reason is that if the decree of the Lower
Appellate Court were assumed to be the
ruling decree that is executable, the execution
application would still be within limitation. It
is not a case, where the starting point of
limitation, reckoned from the date of the
order under Order XLI Rule 11 of the Code,
dismissing the defendant's Second Appeal, is
decisive about the limitation available to the
decree-holder. Therefore, the ruling decree is
that of the Lower Appellate Court, which is a
decree dated 31.03.2011. Limitation, to bring
an application for execution, therefore, would
run from the date of the decree passed by the
Lower Appellate Court, or the only decree,
that now governs the rights of parties. The
Lower Appellate Court passed its decree on
31.03.2011 and the execution application was
instituted on 21.07.2011, which is clearly
well within the prescribed time period of 12
years provided under Article 136 of the
Schedule appended to the Act of 1963.

16. The decision in Ratansingh
(supra) relied upon by Mr. Anil Tiwari,
learned Senior Advocate to say that unless
operation of the decree passed by the Court
820 INDIAN LAW REPORTS ALLAHABAD SERIES
of first instance stayed in appeal, limitation
does not cease to run, holds:

"9. 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 then 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.

10. A decree is defined in Section 2(2)
CPC as under:

"2. (2) 'decree' means the formal
expression of an adjudication which, so far
as
regards
the
court
expressing
it,
conclusively determines the rights of the
parties with regard to all or any of the
matters in controversy in the suit and may
be either preliminary or final. It shall be
deemed to include the rejection of a plaint
and the determination of any question
within Section 144, but shall not include-

(a) any adjudication from which an
appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.-A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed
of. It is final when such adjudication
completely disposes of the suit. It may be
partly preliminary and partly final;"

11. In order that a decision of a court
should become a decree there must be an
adjudication in a suit and such adjudication
must have determined the rights of the
parties with regard to all or any of the
matters in controversy in the suit and such
determination must be of a conclusive
nature. If those parameters are to be applied
then
rejection
of
application
for
condonation of delay will not amount to a
decree. Consequently, dismissal of an
appeal as time-barred is also not a decree.
We are aware that some decisions of the
High Courts have taken the view that even
rejecting an appeal on the ground that it
was presented out of time is a decree within
the meaning of the said definition. We are
also aware of the contrary decisions
rendered by High Courts on the same point.
Dealing with some of those decisions a Full
Bench of the Calcutta High Court [S.P.
Mitra, C.J., Sabyasachi Mukherjee, J. (as
he then was) and S.K. Datta, J.] has held in
Mamuda Khateen v. Beniyan Bibi [AIR
1976 Cal 415 : (1976) 2 Cal LJ 357 (FB)]
that "if the application under Section 5 of
the Limitation Act was rejected the
resultant order cannot be a decree and the
order rejecting the memorandum of appeal
is merely an incidental order". The
reasoning of the Full Bench was that when
an appeal is barred by limitation the appeal
cannot be admitted at all until the
application
under
Section
5
of
the
Limitation Act is allowed and until then the
appeal petition, even if filed, will remain in
limbo. If the application is dismissed the
appeal petition becomes otiose. The order
rejecting the memorandum of appeal in
such circumstances is merely an incidental
order. We have no doubt that the decisions
rendered by the High Courts holding the
contrary view do not lay down the correct
principle of law.

12. In such a situation the mere fact
that the second appeal was dismissed as a
corollary to the dismissal of application for
condonation of delay has no effect on the
decree passed by the first appellate court.

13. Learned counsel cited the decision
of a two-Judge Bench of the Calcutta High
Court in Shyama Pada Choudhury v. Saha
Choudhury & Co. [AIR 1976 Cal 122 :
(1976) 80 CWN 29] as the Bench repelled
7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
821
the contention that the time would start
running from the date of the decree of the
lower court when the appellate court did
not interfere with the lower court decree.
That
position
was
adopted
in
the
background where the appellate court
affirmed the decree of the lower court
though with a slight modification regarding
the costs portion. In such a situation it was
rightly held that the appellate court decree
became enforceable and hence the time
would start running from the date of that
decree."

17. To the understanding of this
Court, it is one thing to say that mere filing
of an appeal would not arrest limitation
from running, and quite different to say that
a decree having been passed in appeal, the
period of limitation would be reckoned
from the date of the decree of the Appellate
Court; not the original decree. It is the latter
proposition which governs the fate of this
case. The authority of their Lordships of the
Supreme Court in Ratansingh relied upon
by Mr. Tiwari does not hold differently.

18. The next decision relied upon by
Mr. Anil Tiwari, learned Senior Advocate is
Syam Sundar Sarma (supra). It is a three
Judge Bench decision, which appears to lay
down the principle that the rejection of a
delay
condonation
application,
accompanying the memorandum of appeal,
is nevertheless a decision in the appeal
itself and has the same effect on divesting
the Trial Court of its jurisdiction to
entertain an application for setting aside the
ex parte decree under Order IX Rule 13 of
the Code though filed earlier, as the case,
where an appeal from the ex parte decree is
dismissed on merits. This decision does
overrule the principle in Ratansingh that
the rejection of a delay condonation
application accompanying an appeal, and
the consequent dismissal of the appeal as
time barred, does not amount to a decree.
That is not the point that arises here.
Nothing is held in Shyam Sundar Sarma,
which may be of any assistance to the
judgment-debtors-petitioners.

19. The next authority relied upon by
Mr. Anil Tiwari, learned Senior Advocate
appearing
for
the
judgment-debtorpetitioners is Ram Bachan Rai (supra),
which too, this Court is afraid, does not at
all apply in principle to the issue involved.
Ram Bachan Rai was a case where an ex
parte decree was passed and sought to be
set aside under Order IX Rule 13 of the
Code. The application to set aside was
dismissed in default. The application to
restore the earlier application to set aside
was rejected by the Trial Court, and an
appeal from the said order was dismissed.
A revision from the Appellate Court's order
was also dismissed by the High Court.
When in execution, symbolic possession of
the suit property was delivered to the
decree-holder, the judgment-debtors moved
the Executing Court under Section 47 of
the Code, saying that the execution of the
decree was barred by time. The decree ex
parte was passed on 03.05.1976 and the
execution application was instituted on
05.04.1991, that is to say, after a period of
15 years. It was beyond the limitation of 12
years. There was no issue on facts that
there was never a stay granted on execution
of the decree ex parte, at any stage, so as to
arrest
time
from
running
and
save
limitation. The Executing Court dismissed
the objection under Section 47, holding that
the period of limitation would have to be
reckoned from the date of rejection of the
civil revision, arising out of the restoration
matter by the High Court and not the date
of the decree. This order was affirmed in
revision by the High Court. Upon an appeal
822 INDIAN LAW REPORTS ALLAHABAD SERIES
by special leave to their Lordships of the
Supreme Court, reversing the Executing
Court and the High Court, it was held that the
execution
application
was
barred
by
limitation under Article 136 of the Schedule
appended to the Act of 1963, because the
limitation had to be reckoned not from the
date of dismissal of the civil revision arising
out of the restoration matter against the exparte decree, but the date of the decree.
Apparently, there was no stay of execution
pending the proceedings, seeking to restore,
that ultimately failed. Therefore, the period of
limitation was held to run from the date of the
decree continuously and end upon expiry of a
period of 12 years, whereafter execution was
levied.

20. This Court must observe that Ram
Bachan Rai was not a case about the merger of
an original decree with an appellate decree at
all. It was a case where the original decree was
the one to be executed, albeit after failure of
motions to get it set aside before the Trial Court,
and also the higher fora, since the decree was ex
parte. Obviously, to this nature of proceedings,
no one can doubt that the period of limitation
applicable would have to be reckoned from the
date of the original decree, when during
motions brought to set aside the ex parte decree
or by invoking appellate procedures, there was
no stay of execution. It has not the slightest
application to a case, where the original decree
stands effaced and merged in the superior
decree of an Appellate Court, as the case here.

21. The limitation here, therefore, has to
be counted from the date of the Lower
Appellate Court's decree, if not the order in
second appeal affirming it, a question not
thought necessary to be gone into, as earlier
said.

22. In view of what has been said
above, the decision in Ram Bachan Rai
also does not bail out the judgment-debtorpetitioners. In a last ditch effort, Mr. Tiwari
has fallen back for support upon the
decision in Bimal Kumar (supra). He has
drawn
this
Court's
attention
to
the
following paragraphs of the report in Bimal
Kumar:

"41.In this context, we may usefully
refer
to
the
dictum
in
Ratansinghv.Vijaysingh[(2001) 1 SCC 469]
wherein, while dwelling upon the concept
of enforceability of a decree and the effect
of an order of stay passed by the appellate
court, the Bench stated thus: (SCC p. 473,
paras 8-9)

"8. When is a decree becoming
enforceable? 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 expression 'enforceable' has
been used to cover such decrees or orders
also
which
become
enforceable
subsequently.

9. 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 then 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."

42.In Ram Bachan Rai [(2006) 9 SCC
446] the two-Judge Bench took note of the
fact that an application under Order 9 Rule
13 for setting aside the ex parte decree was
dismissed
which
was
assailed
in
a
miscellaneous appeal and ultimately in a
civil revision. At no stage, stay was granted
by any court. The decree-holders therein
7 All. Rakesh Kumar & Anr. Vs. Chhotey Lal & Ors.
823
filed an application for execution after 12
years. Regard being had to the same, it was
held that the execution proceeding was
barred by limitation.

44.In the case at hand, the compromise
decree had the status of a final decree. The
latter suit filed by the appellants was for
partition and declaring the ex parte
compromise decree as null and void. As has
already been stated, there was no stay of
the earlier judgment or any proceedings
emanating therefrom. In the absence of any
interdiction from any court, the decreeholder was entitled to execute the decree. It
needs no special emphasis to state that
there was no impediment or disability in
the way of the respondents to execute the
decree but the same was not done.
Therefore, the irresistible conclusion is that
the initiation of execution proceedings was
indubitably barred by limitation.

45.Thus analysed, the reasons ascribed
by the learned Single Judge are absolutely
unsustainable. The period of limitation
stipulated under Article 136 of the Act
could not have been condoned as has been
so presumed by the learned Single Judge.
The reliance placed on Bharti Devi [AIR
2010 Jhar 10 : (2009) 3 JLJR 90] is totally
misconceived inasmuch as in the said case,
the execution proceeding was initiated for
permanent injunction. No exception can be
taken to the same and, therefore, reliance
placed
on
the
said
decision
is
misconceived."

23. Now, Bimal Kumar was a case
that never involved the the merger of a
decree passed by a Court of first instance
with an appellate decree. It was a case
where a partition suit was filed between
parties earlier, where, leaving aside one
defendant, the plaintiff and the other
defendants
filed
a
joint
petition
of
compromise. The defendant, who appeared
in the suit and filed a written statement to
contest, later on chose not to contest. The
Trial Judge accepted the compromise and
passed a compromise decree, proceeding
against the non compromising defendant ex
parte. Later on, it appears that the heirs and
legal representatives of ex-parte defendant
brought a fresh suit for partition on ground
that the compromise decree, passed in
earlier suit, was obtained by fraud,
challenging the compromise decree passed
in the former suit. The later suit was
dismissed. An appeal carried from this
decree was dismissed for non-prosecution.
At this stage, the decree-holder in the
earlier suit, where the compromise decree
had been passed, applied for execution. In
the meantime, the ex-parte defendant in the
earlier suit, who had unsuccessfully sued
and appealed by a separate suit, passed
away. The decree-holders in the former suit
for partition levied execution against the
heirs and legal representatives of the ex
parte defendant-judgment-debtors of the
earlier suit. The legal representatives raised
an objection that the execution was barred
by limitation and deserved to be dismissed
on that ground.

24. The Trial Judge dismissed the
execution application as time barred. A
revision carried to the High Court was
allowed, holding it to be within time. In
appeal by special leave, their Lordships
held that in the absence of a stay of the
compromise decree passed in the earlier
suit being granted in the subsequent suit
brought by the ex parte defendant, the
limitation has to be reckoned from the date
of the compromise decree. In the absence
of any stay, the limitation would run
continuously and run itself out at the end of
the prescribed period of time. It can thus be
seen that in Bimal Kumar too, there was no
case about a decree of a Court of first
824 INDIAN LAW REPORTS ALLAHABAD SERIES
instance merging with the decree of an
Appellate Court from the date of which
limitation would then have to be reckoned.
Therefore, the holding in Bimal Kumar is
also away from the point that the judgmentdebtor-petitioners canvass here.

25. In Surinder Pal Soni (supra)
relied upon by Mr. Shobhit Dube, the
relevant facts and the point involved can
best be understood in their Lordships'
words, carried in paragraph no. 8 of the
report:

"8. On the other hand, Mr Gopal Jha,
learned counsel appearing on behalf of the
respondents submitted that:

8.1. The doctrine of merger applies to
a situation when the limitation for the filing
of an execution application is to be
computed.

8.2. The decree of the trial court was
conditional since it contained a direction
for the execution of the sale deed of the suit
land except 2 kanals within a period of 2
months on receipt of the balance sale
consideration. The decree contained three
conditions, each of which had to be
fulfilled.

8.3. In the present case, the decree of
the trial court was not modified by the
appellate court.

8.4. No application was filed by the
appellant for the extension of time to effect
deposit nor was any amount deposited
while filing the execution application. The
High Court while dismissing the appeal of
the judgment-debtor did not grant an
extension of time to the decree-holder for
the deposit of the balance.

8.5. The decree-holder has not shown
reasonable grounds for extension of time
and the filing of an appeal does not
constitute a valid ground particularly in the
absence of a stay under Order 41 Rule 5.

8.6. The respondent deposited the
balance of the sale consideration on 19-22015 without an application under Section
148 CPC for the extension of time.

8.7. For the above, it was submitted
that the appellant having failed to comply
with the conditions specified in the decree
dated 20-3-2012, the High Court was
justified in allowing the respondent's civil
revision and holding that the decree had
been rendered inexecutable."

26. On these facts, repelling the
contention that non grant of a stay order
pending appeal by the Appellate Court
would not, at all, affect the reckoning of
limitation from the date of decree of the
Appellate Court, subsequently passed, it
was observed:

"9.