The dismissal of an appeal for want of prosecution does not constitute a decree, and the doctrine of merger does not apply, as the original decree remains enforceable from its issuance.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the consent of the parties, heard finally.

2. Whether the principle of merger applies to the dismissal of the appeal for want of prosecution so as to reckon the period of limitation for the execution of the decree impugned therein, from the date of such order by the appellate Court, is the question that arises for consideration in this Petition under Article 227 of the Constitution of India ?

3. Shorn of superfluities, the background facts in which the aforesaid question crops up for consideration, can be summerized as under :

3.1 Defendant No.1 was the holder of the land bearing Gat No.50 admeasuring 39 Are with a right to draw water from the well situated in Gat No.49, at Mauje Sakuri Tarfe Belhe, Tal. Junnar, Pune (the suit property). Defendant No.1 executed a mortgage by conditional sale on 21 February 1966 in favour of Pandu Khandu Salve (D2) and raised a loan of Rs.500/- thereon. As Defendant No.1 was in need of more money, Defendant No.1 executed an Agreement for Sale of the suit property for a consideration of Rs.2,750/-, on 24 February 1967. A sum of Rs.500/- was accepted thereunder towards part consideration.

3.2 On 2 May 1968, the Plaintiff paid the entire consideration of Rs.2,750/- to the Defendant No.1. A Deed of Cancellation of Mortgage by Conditional Sale was executed by Defendant No.2 in favour of Defendant No.1, upon receipt of the mortgage money of Rs.500/-. Defendant No.1, however, committed default in performance of his part of the contract and execute the Sale Deed despite receipt of the balance consideration and delivery of possession of the suit property to the Plaintiff. Hence, the Plaintiff was constrained to institute a suit being RCS No.114 of 1984 for specific performance of the contract and execution of the conveyance by the Defendant No.1 in favour of the Plaintiff.

3.3 By a judgment and decree dated 9 March 2001, the trial Court was persuaded to decree the suit and direct Defendant No.1 to execute registered Sale Deed of the suit property in accordance with the terms of the Agreement of Sale dated 2 May 1968 and confirm the possession of the Plaintiff as the owner of the suit property. Defendant No.2 was also directed to execute an instrument as the consenting party to the said Sale Deed. In default, the Plaintiff was entitled to get the Sale Deed executed and registered through Court.

3.4 Defendant No.1 assailed the aforesaid decree by preferring an appeal, being Civil Appeal No.372 of 2001, before the District Court at Pune. Defendant No.2 also assailed the decree, by filing Civil Appeal No.422 of 2001.

3.5 By an order dated 1 October 2007, the learned District Judge was persuaded to dismiss both the appeals in default of appearance of the Appellants.

3.6 On 6 January 2016, the Petitioners filed execution Petition, being Regular Darkhast No.1 of 2016, to execute the decree passed in RCS No.114 of 1984. Judgment Debtor Nos.2a and 2d – successors in interest of Defendant No.2 Pandu Salve, filed applications (Exh.44 and 62) seeking dismissal of the Execution Petition as it was barred by law of limitation.

3.7 The Petitioners resisted the application by filing reply. It was, inter alia, contended that the doctrine of merger applies and since the Civil Appeals w