Sankar Prasad Mitra, J.@mdashIn these appeals we have to decide when a decree becomes executable for the purpose of limitation The facts are that T.S. Nos. 7, 5 and 56 of 1951 were decreed by the trial Court on July 26, 1952. There were appeals against these decrees marked as T.A. Nos. 229, 230 and 231 of 1952. These appeals were preferred by the Defendants. The appeals were dismissed on November 30, 1953 and the decrees of the trial Court were affirmed. Then there were the Second Appeals. The second appeals are S.A. Nos. 718 to 720 of 1954. On January 14, 1960, these appeals were allowed. The cases were remanded to the lower appellate Court by this Court. On February 15, 1961, the lower appellate Court dismissed the title appeals after remand and affirmed the trial Court''s decrees. There were again a second series of second appeals, being S.A. Nos. 346, 347 and 348 of 1962. These second appeals were dismissed on September 14, 1964, under Order 41, Rule 11 of the Code of Civil Procedure. The execution cases, which arc the subject-matters of these appeals, were instituted on February 17, 1965.
2. It is common case that the new Limitation Act of 1963 would apply to these execution cases. This Act was passed in October 1963 and came into force on January 1, 1964. Under Article 136 of this Act, the period of limitation is 12 years "for the execution of any decree (other than a decree granting a mandatory injunction) or an order of civil Court." The time from which this period of twelve years begins to run is, inter alia, when the decree becomes enforceable.
3. On behalf of the Appellants it has been urged before us that the decrees in the instant case became executable on July 26, 1952, when they were passed by the trial Court. There were no stay orders and as such, under the new Limitation Act applications for execution should have been made within July 26, 1964.
4. The Appellant''s counsel has relied on a number of decisions. In Ratan Lal Singh v. Jazer Bros (P.) Ltd. (1971) 75 C.W.N. 784 (789) Salil Kumar Datta J. has said that where the Appellant Court merely dismisses the appeal the principles of merger have no application in cases of execution of the original decree. But the learned Judge makes it clear that his proposition does not apply to limitation. In State of U.P. v. Mohammad Nooh AIR 1958 S.C. 86 (95) : (1958) S.C.A. 73 it has been observed that while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it docs so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree or for computing the period of limitation for an application for final decree in a mortgage suit. But whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the Court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy, but until it is reversed or modified it remains effective.
5. On the basis of these observations the learned Advocate for the Appellant submits to us that in the instant case at no time was there any bar to execution of the decrees passed on July 26, 1952. And if the applications for execution was not made within time the Respondents could not take advantage of any subsequent decree or order that might have been passed by the appellate Court.
6. At this stage we only point out that the Supreme Court has noted in this case that when a decree of the Court of first instance is merged in the decree passed on appeal therefrom the date of the appellate judgment has to be taken into consideration for purposes of computing the period of limitation for execution of the decree. As to what is meant by merger of a decree of the lower Court in a decree of the appellate Court we shall discuss later in this judgment.
7. The next case which the Appellants'' Advocate cited was the case
8. It is true that in the light of these observations we have to determine in the instant appeal whether decrees of the trial Courts merged in the decrees of the appellate Courts or in the order made under Order 41, Rule 11 of the Code.
9. Reference was also made to Juscurn Boid v. Pirthichand AIR 1918 P.C. 151. It was held that under the Indian law and procedure the original decree was not suspended on presentation of an appeal nor was its operation interrupted where the decree on appeal is one of dismissal.
10. There propositions are indisputable, but they do not appear to be apposite to the facts of this case as we shall point out later on. Our attention was then drawn to Sm. Ratan Mala Mondal and Anr. v. Gopal Lal Daga and Ors. Supra But this case, it appears, supports the Respondent to a certain extent. It has been held that after an appeal the decree of the trial Court is merged in the decree of the appeal Court. The Courts have applied this theory of merger in two classes of cases only, viz. for the purpose of determining the point of time when limitation would run and for the purpose of amending the decree. This Court then proceeds to observe that the doctrine of merger has never been applied for the purpose of defeating an execution petition of the trial Court when the appeal has been dismissed and the decree of the trial Court confirmed. It is stated further that although it is true that technically the decree of the trial Court merges in the decree of the appeal Court, it cannot be said that even when the decree of the trial Court is affirmed in appeal the decree of the trial Court is wiped out for all purposes.
11. The Appellant''s Advocate states to us that he was drawing our attention to this decision only to show that the execution petition could have been easily filed as soon as the trial Court passed its decrees and the result of the dismissal of the appeals would not have affected the petition for execution. He wanted also to argue that the doctrine of merger did not apply when the appeal had been dismissed and the decree of the trial Court confirmed. But, we do not find any support for his latter proposition in the judgment in Ratan Mala Mandal''s case Supra. On the contrary, this Court has categorically stated that technically the decree of the trial Court merges in the decree of the appellate Court even when the trial Court''s decree is affirmed in appeal. Whether it is a technical merger or not is immaterial for our purpose in deciding the issues raised before us.
12. We now propose to discuss the direct authorities on the questions raised in this appeal. The earliest case to which our attention has been drawn in the case of Ram Churn Bysack and Anr. v. Luckhee Kant Bornick and Ors. (1871) 16 W.R. 1 (7) (F.B.). It has been held that whether a decree of a lower Court be reversed or modified or affirmed on appeal by the High Court, the decree is a decree of the High Court and that such decree is governed not by twelve years limitation prescribed by Section 19, Act XIV of 1859, but by the three years limitation prescribed by Section 20 of that Act. There is an illuminating judgment of Mitter J. We quote below the portions relevant for our purposes. These are as follows:
The first question referred to us does not admit of any difficulty whatever. Whether the decree of the Appellate Court is for reversing or for affirming the decree against which the appeal was preferred it is in either case the final decree in the cause and as such, the only decree which is capable of being enforced by execution after it is once pronounced. If the decree of the lower Court is reversed by the Appellate Court, it is absolutely dead and gone. If, on the other hand it is affirmed by the Appellate Court, it is equally dead and gone, though in a different way, namely by being merged in the decree of the superior Court, which takes its place for all intents and purposes.
This judgment of the Full Bench of our Court was affirmed by the Judicial Committee in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy. (1872) 14 M.I.A. 465 (489-490).
13. There is another Full Bench decision of our Court in Luchmun Persad Singhi v. Kishun persad Singh and Ors. ILR (1882) 8 Cal. 218. Sir Richard Garth C.J. delivering the opinion of the Full Bench observed that although an order of the Privy Council might confirm the decree of the Court below that order was undoubtedly the paramount decision in the suit; and any application to enforce it was, in point of law, an application to execute the order and not the decree which it confirmed.
14. Then in the case of Uma Sundari Devi v. Binud Bashini Chowdhrani and Anr. ILR (1897) 24 Cal. 759 (F.B.) a Full Bench of this Court was considering the provisions, particularly of Section 551 of the Code of Civil Procedure,'' 1882, corresponding to Order XLI, Rule 11 of the, present Code. It has been held that the order, of dismissal of an appeal u/s 551 being a final ''determination of and an adjudication ion the question raised in the appeal, is a ''decree'' and in this respect there is no distinction between an appeal which is dismissed u/s 551 and an appeal which is dismissed under any other section of the Code after full hearing. When an appeal is dismissed u/s 551 or in the case of a second appeal when the decree is one of dismissal the effect, practically in the opinion of the Division Bench, is to make the decree which is confirmed the final decree to be executed in the suit; and the High Court making such order has powers to amend the decree of the lower Court which has been in effect confirmed by it so as to bring it in conformity with the judgment which is also confirmed.
15. We may now take up a decision of the Judicial Committee. It is the case of
The Court is now executing, not the District Judge''s decree of 1887, but the Queen''s order of 1895, which, by affirming the District Judge''s decree, has adopted its terms and has carried on their effect down to a later date. All that the Courts below had to do and all that this Board has now to do, is to construe the order of May, 1895 and to carry it into execution. Its meaning is hardly open to doubt. It affirms the District Judge''s decree which awarded ''future mesne profits''. That signifies profits future to November 12, 1887. The order of 1895, speaking with the language of the decree of 1887, clearly carries all profits up to its own date. If there had been delay for three years after May 11, 1898, Section 211 (of the Code, of 1882) would be called into operation with reference to the order of that date. But to call it into'' operation with reference to the decree of November 12, 1887, is to deprive the later order of its obvious meaning. It is true that one of the arguments used for the Defendant was that the later order has no meaning as regards mesne profits because they are not expressly mentioned; but that is clearly wrong....
16. This is another judgment of the Privy Council affirming the view that when the decree of a lower Court is confirmed by an order of the appellate Court, it is the appellate decree which is to be executed.
17. We may now refer to one of the later Division Bench judgments of our Court. It is the case of
18. For our purposes, the relevance of this case is that if a trial Court''s decree is put into execution and later on the appellate Court affirms the trial Court''s decree then the application for execution would be treated as an application for execution of the appellate Court''s decree.
19. The last case we intend to cite is a judgment of the Supreme Court on Article 226 of the Constitution. This is the case of
20. In this case, the Supreme Court has distinguished the earlier case
21. Let us now try to apply the principles'' laid down in the above cases to the facts in the instant appeals. Here the original decree were passed on July 26, 1962. Thereafter, there were various proceedings right upto September 14, 1964, when the Second Appeals Nos. 364, 347 and 348 of 1962 were dismissed under Order XLI, Rule 11 of the Code of Civil Procedure. By this order of dismissal, the trial Court''s decrees were confirmed A dismissal of an appeal under Order XLI, Rule 11 of the Code has the same effect as a dismissal of the appeal upon hearing : vide Uma Sundari Debt''s case Supra. On these facts, the starting point of limitation for application for execution under Article 136 of the Limitation Act, 1963, appears to be not July 26, 1952, but September 14, 1964, when the Second Appeals were dismissed under Order XLI, Rule 11 and since the application for execution was made on February 17, 1965, the application is not barred by limitation.
22. In the result, these appeals are dismissed. No order as to costs.
23. The records may be sent back to the trial Court.
Janah J.
24. I agree.
