The main legal point established is that the doctrine of merger does not apply when seeking to execute a decree upheld by a higher court, and the mandatory nature of Order 45 Rule 15 CPC in execution proceedings.

JUDGMENT

Jyoti Singh, J. (Oral)

1. By this revision petition, Petitioner challenges an order dated 15.10.2022, passed by the Executing Court in Misc. Ex. No.7/20 and also seeks a direction to transfer the execution petition to the Court of competent jurisdiction in terms of Section 39 CPC.

2. At the outset, it needs to be noted that the revision petition has been adjourned on several dates on account of service on legal heirs of Judgment Debtors No. 2 to 4. Petitioner has impleaded the legal heirs of the said Judgment Debtors as proforma Respondents and this Court does not find the necessity to adjourn the matter any further for their service, for the reason that none of the legal heirs of Judgment Debtors No. 2 to 4 have assailed the impugned order and in any event, the decree binds them.

3. Some relevant facts are necessary to be captured for deciding the present petition. Deceased Sh. Uttam Chand was the Plaintiff in the suit and Petitioner herein was one of the Defendants. Suit was filed by the Plaintiff on 17.02.1979 being Suit No. 376/1993 against four Defendants alleging that he was the owner of the suit property by virtue of a Certificate of Sale dated 04.01.1965, predicated on the ground that late Sh. Tara Chand, father of the Defendants had forcibly taken possession of the suit land in 1975. Trial Court dismissed the suit on 14.07.1998 and the order was challenged by the Plaintiff before First Appellate Court in RCA No. 28/2002. The findings and order of the Trial Court were reversed by the First Appellate Court and the suit was decreed vide judgment and decree dated 05.07.2003.

4. Decree Holder filed Execution No. 26/2003 on on 27.08.2010 and the interim order was made absolute.

5. On account of the stay order being made absolute, the Executing Court on 17.09.2010 adjourned the execution sine die, taking note of the order passed by this on 27.08.2010. RSA No. 225/2003 was allowed by the Court vide judgment dated 18.02.2011 and the suit was dismissed as time barred. Plaintiff challenged the judgment before the Supreme Court in SLP (Civil) No. 16321/2011 and notice was issued by the Supreme Court on 08.07.2011. Leave was granted by the Supreme Court on 08.01.2020 and after hearing arguments the judgment was reserved. On 15.01.2020, the Supreme Court allowed Civil Appeal No. 190/2020 and set aside the judgment of this Court, decreeing the suit in favour of the Plaintiff.

6. In the meantime, Plaintiff expired and his legal representatives filed Misc. Ex. 7/2020 on 07.02.2020 under Section 151 CPC, seeking revival of Execution Petition No. 26/2003. Petitioner herein i.e. Judgment Debtor No. 4 filed objections against revival of the execution petition and counsel for LRs of Judgment Debtor No. 2 addressed oral arguments in opposition without formal objections, while LRs of Judgment Debtor Nos. 1 and 3 did not appear, despite service. By the impugned order dated 15.10.2022, the Executing Court allowed the application filed by the LRs of Decree Holder and revived the execution petition to its original number and position.

7. Assailing the order of the Executing Court, learned counsel for the Petitioner contends that doctrine of merger implies that at one point in time, there is only one operative decree. The suit filed by the Plaintiff was dismissed by the Trial Court on 14.07.1998 and the First Appellate Court decreed the suit. However, this Court in RSA No.225/2003 dismissed the suit as time barred and being aggrieved, the Decree Holder approached the Supreme Court and finally, the suit was decreed by the Supreme Court on 15.01.2020. Therefore, in view of Order 45 Rule 15 CPC, execution of the decree passed by the Supreme Court could only be done by the procedure prescribed therein and in support, learned counsel relies on the judgment of the Supreme Court in Surinder Pal Soni v Sohan Lal (Dead) through LRs, (2020) 15 SCC 771.

8. It is also urged by learned counsel for the Petitioner that the Executing Court does