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2018 Supreme(Bom) 634
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
RAVINDRA V. GHUGE, J.
S.K. Muneer & Another - Appellant
Versus
Antikabai Yadav Gawali & Others - Respondent
Writ Petition No. 1422 of 2018
Decided On : 08-02-2018
For the Petitioner:D.R. Kale Patil, Advocate.
The doctrine of merger and the procedure for sending the judgment debtor to civil imprisonment under Order XXI Rule 37 were central to the court's decision.
Headnote:
Execution - Limitation - Order XXI Rule 37 - [MOTOR ACCIDENT CLAIMS] - [Code of Civil Procedure, Order XXI Rule 37] - The court discussed the execution of a decree for the payment of money, the doctrine of merger, and the procedure for sending the judgment debtor to civil imprisonment under Order XXI Rule 37. The court found that the decree became enforceable after the dismissal of the First Appeal and that the executing court followed the procedure prescribed under Order XXI Rule 37. The petition was dismissed.
Fact of the Case:
The petitioner challenged the execution of a decree for the payment of money, arguing that it was non-executable due to limitation and that the procedure laid down under Order XXI Rule 37 of the Code of Civil Procedure had not been followed.
Finding of the Court:
The court found that the decree became enforceable after the dismissal of the First Appeal and that the executing court followed the procedure prescribed under Order XXI Rule 37.
Issues: The issues raised were the non-executability of the decree due to limitation and the alleged failure to follow the procedure under Order XXI Rule 37.
Ratio Decidendi: The court held that the decree became enforceable after the dismissal of the First Appeal and that the executing court followed the procedure prescribed under Order XXI Rule 37.
Final Decision: The petition was dismissed.
1. The petitioner is aggrieved by the order dated 20/09/2017 below Exhibit 37, 02/11/2017 below exhibit 43 and 09/01/2018 below Exhibit 50 in Regular Darkhast (MACP) No. 221/2008.
2. I have considered the strenuous submissions of the learned advocate for the petitioner, who has primarily raised two issues. Firstly, that the decree is sought to be executed after a passage of 12 years and hence, it is non-executable. Secondly, that before issuing the warrant for detaining the judgment debtor in Civil imprisonment, the procedure laid down under Order XXI Rule 37 of the Code of Civil Procedure, has not been followed. Reliance is placed on the judgment of the Hon’ble Apex Court in the matter of Bimal Kumar and another Versus Shakuntala Debi and others [2012 AIR (SC) 1586] and the judgments of this Court in the matter of Satish Ramchandra Shahapurkar Versus Gorakshnath Madhavrao Pund [2010 (1) AIR Bom R 591], and in the matter of Pundlik Mahadu Nazire Versus Maharashtra State Farming Corporation [1992 (1) Mh.L.J. 455].
3. After considering the submissions of the learned counsel for the petitioner, the judgment cited and the record available, I find that this is a classic case of a judgment debtor having kept the execution proceedings at bay for a period of 10 years, and yet, despite his conduct, which I have noted below, contends that the procedure laid down in law has not been followed.
4. In so far as the first issue raised by the petitioner about limitation is concerned, it needs to be noted that the Trial Court/Motor Accidents Claims Tribunal at Aurangabad, delivered its verdict on 31/10/1988 in MACP No. 72/1987. Copy of the said judgment is not placed on record. Thereafter, the judgment debtor preferred First Appeal No. 671/1989, for challenging the judgment and decree before this court. By judgment and decree dated 29/04/2008, the First Appeal was dismissed with a reasoned order and the judgment of the Tribunal merged with the judgment of this Court. During the pendency of the appeal, this Court had granted a conditional stay and the judgment debtor was directed to deposit some amount. In pursuance to the said direction, the judgment debtor deposited an amount of Rs. 15,000/-, which was received by the decree holder. The amount recoverable today is about Rs. 2,36,000/-.
5. Contention is that since, Regular Darkhast No. 221/2008, was lodged after about 19 years from the judgment of the tribunal, the said decree is non-executable and is beyond the limitation period of 12 years as is prescribed by Article 136 of the Limitation Act, 1963. It is provided under Article 136 that the execution of a decree would be permissible within 12 years when the decree or order become enforceable and whether the decree or any subsequent order directs any payment of money or the delivery of the property to be made at a certain date or at recurring periods.
6. As is noted from the record, this petitioner had preferred First Appeal in 1989, which came to be dismissed on 29/04/2008. Naturally the conditional stay granted earlier, stood vacated by the judgment of this Court. It is, thereafter, that the judgment and decree of the Tribunal became enforceable under Article 136.
7. The Hon’ble Apex Court in the matter of Chandi Prasad and others Versus Jagdish Prasad and others (3 Judges bench)[2004(8) SCC 724 SCALE], has relied upon its earlier judgments and has concluded that the doctrine of merger would render the judgment and decree merged in the judgment of the Superior Court. Relying upon the judgment in the matter of UJS Chopra Versus State of Bombay [AIR 1955 SC 633], it was concluded that a judgment of the High Court, delivered in exercise of its appeal powers entertaining an appeal, notwithstanding whether it is allowed or dismissed the appeal, would replace the judgment of the Lower Court and therefore, the judgment of this Court would be treated as final.
8. The Hon’ble Apex Court has concluded, while dealing with the doctrine of merger, th
