S.N.Hussain, J.

1. Heard the learned counsel for the parties.

2. Petitioner is plaintiff-decree holder and is aggrieved by the impugned order dated 19.7.2003 by which the learned Subordinate Judge-III, Buxar, allowed the petition of the Opposite Parties (Judgment-debtors) and dismissed Execution Case No. 5/1998 as time barred.

3. Admitted facts of this case are that the petitioner had filed Title Suit No. 13/1979 for a declaration that he was an Assistant Jailor and had become entitled to the post of Superintendent of jail and denial of promotion, salary etc. to him was illegal. The said suit ws decreed on 26.9.1979 (Annexures-1 and 2) the learned Second Additional Subordinate Judge, Buxar, and the said decree was challenged by the defendants-opposite parties (State of Bihar and another) in Title Appeal No. 168/1979 which was dismissed on merits with cost by the learned 5th Additional District Judge, Bhojpur, on 21.12.1985 (Annexures-3 and 4). Further more, against the said appellate decree the opposite parties preferred Second Appeal No. 152/1987 in this High Court and the same was dismissed on 16.9.1988 due to non-compliance of this Courts order and the said dismissal was recorded on 14.3.1989 (Annexure-5).

4. The learned counsel for the petitioner claimed that he had also filed representation dated 25.9.1987 (Annexure-6) before the defendants-authorities for taking steps as per the judgment of the lower appellate Court, but the said representation was rejected on 12.8.1988 (Annexure-7). He further contended that even after dismissal of the Second Appeal the petitioner filed, a representation on 10.4.1998 (Annexure-8) for the same purpose, but the defendants-authorities took no step thereupon and hence the petitioner filed Execution Case No. 5/1998 on 24.9.1998 for execution of the decree in his favor. This Execution case has been dismissed by the impugned order on the ground that it was filed much more than twelve years after the date of the judgment in Title Appeal dated 21.12.1985.

5. The submissions of the petitioners counsel are three fold. Firstly, that as per Art. 136 of Limitation Act, limitation for filing the execution case should have been counted from 16.9.1988, the date of the order of this High Court and not from 21.12.1985, the date of judgment of the lower appellate Court which was challenged in Second Appeal. In this connection, he relies upon a decision of the Hon ble Apex Court in case of Union of India V/s. West Coast Paper Mills Ltd. and Anr., reported in (2004) 2 Supreme Court Cases, 747, regarding the doctrine of merger. Secondly, that after the appellate judgment the petitioner had filed representation before the defendants-authorities for honouring the decree and taking steps in accordance thereto, and hence limitation should have been counted from 12.8.1988, the date on which the said representation was rejected. And thirdly, that such technicalities should not stand in the way of substantial justice as the decree was affirmed upto the High Court and hence the apposite party- defendants, which claims to be a welfare State, should not have taken such technical grounds and the learned Court below itself should have condoned the delay, in this connection, be relies upon two decisions of the Hon ble Apex Court in cases of Ramnath Sao V/s. Gobardhan Sao, reported in 2002 (3) PLJR (SC), 247 and State of Bihar V/s. Kameshwar Pd. Singh, reported in 2000 (3) PLJR (SC), 81, by which long delays were condoned.

6. On the other hand, the learned counsel for the Opposite parties has submitted that from the earlier order of this Court dated 2.9.1988 (Annexure-5) itself, it is apparent that Second Appeal No. 152/1987 filed against the judgment and decree of the lower appellate Court dated 21.12.1985 (Annexure-3) was dismissed on 16.9.1988 for non-compliance of the Courts order dated 2.9.1988 for removing all the defects in the memorandum of appeal. Hence, he claims that such rejection of the Second Appeal f