2016 Supreme(Pat) 536

IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Ram Murti Choudhary @ Ram Murat Prasad Chaurasiya – Petitioner
Versus
Ram Nihora Choudhary – Respondent
Civil Writ Jurisdiction Case No. 22327 of 2012
Decided On : 12-08-2016

Headnote:

Filing of an appeal against judgment and decree of the learned lower Court will not serve any purpose unless and until it culminates in proper adjudication by way of deciding the lis under its judgment followed with decree. However, during midst thereof, so many eventualities persist. The appeal may be rejected at the admission stage itself on account of limitation or other kind of legal infirmities. It may be dismissed after admission on account of noncompliance of Court’s order in filing requisites etc. as well as having non-presence of appellant at the time when appeal is called out for hearing. These intermediary events could not be identified as a judgment and decree of the appellate Court and on account thereof, the question arose with regard to its impact over calculation of period in terms of Article 136 of the Limitation Act.

Fact of the Case:

Respondent/plaintiff had filed Title Suit No. 19 of 1987 asking for a relief for declaration of a conditional sale deed dated 28.01.1984 executed by the defendant/petitioner/judgment-debtor in his favour to become an absolute, (B) if the Court finds any kind of impediment in granting the aforesaid relief then an alternative decree for Rs.8800/- (consideration amount) along with registration cost, stamp cost, against the defendant in favour of the plaintiff be passed, (C) cost of the suit, (D) any other relief or reliefs which the plaintiff is found entitled for, wherein the petitioner/defendant/judgment-debtor appeared, filed written statement, contested the suit and ultimately, vide judgment dated 30.06.1995 decree dated 14.07.1995, the learned lower Court decreed the suit and further, allowed alternative relief directing the petitioner/defendant/judgment-debtor to pay Rs.8800/- along with registration cost, stamp cost. It is also apparent that Title Appeal No. 33 of 1995 was filed on behalf of petitioner/ defendant/judgment-debtor, which was admitted. While was called upon for hearing, on account of absence of petitioner/defendant/judgment debtor/appellant, appeal was dismissed in default on 14.03.2008 which, up-till-now did not restore. Furthermore, during continuance of aforesaid appeal, no stay was granted. Execution Case No. 02 of 2008 has been filed on behalf of respondent/plaintiff/decree-holder on 05.06.2008 after dismissal of Title Appeal and as is evident, question of limitation was pointed out by the office at the time of checking and while admitting the same, vide order dated 12.06.2009, the learned lower Court had opined that in view of dismissal of appeal on 14.03.2008, no question of limitation survives.

Finding of the Court:

The learned lower Court had elaborately discussed the issue and gave its finding, which is duly supported with so many judicial pronouncements of our own High Court. Further elaborating his submission, learned counsel for the respondent has submitted that First Appeal happens to be continuance of suit. There happens to be no controversy over this legal proposition. Once it happens to be continuance of suit, then in that event, presence of judgment-debtor identified by the learned lower Court in its true legal fiction found to be non est and that continues till the date of final adjudication of the First Appeal. As the judgment and decree remains in abeyance on account of filing of appeal, then in that event, it happens to be un-executable. Being un-executable, it cannot be brought under motion. Its appearance is to be in terms of judgment and decree passed by the appellate Court.

Issues: (A) Whether pendency of Appeal by its implication suggest stay of judgment & decree of the lower Court? (B) What will be mode of consideration with regard to calculation of period of limitation relating to filing of execution proceeding in case appeal is dismissed in default in terms of Article 136 of the Limitation Act.

Ratio Decidendi: 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, it is the appellate court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no super session and hence the lower court decree continues to be enforceable.

Final Decision: Matter is referred to Division Bench for authoritative decision on the points formulated by the Court.