The main legal point established in the judgment is the impact of the dismissal of a Second Appeal on the enforceability of the decree, the application of the Limitation Act, and the validity of claims raised at the execution stage.

1. On 27-11-1978 the trial court passed a decree of mandatory injunction in OS 550/76, for demolition of a hut, within one month. The defendant appealed; and in IA 661/79 in AS 52/79 the District Court passed an order on 29-3-1979 staying "all execution proceedings" in the suit, pending disposal of the appeal. The appeal was eventually dismissed on 5-2-1982. On 8-6-82 the decree holder filed EP 133/82 for execution of the decree. The judgment debtor objected. The executing court over-ruled the objections by order dated 13-1-83 and it is this order which is now under challenge.

2. EP 133/82 was admittedly an application for executing the decree in AS 52/79. The first contention urged on behalf of the petitioner (judgment-debtor) is that as he had filed SA 584/82 before this Court, against the judgment and decree of the District Court, what could have been put into execution was only the decree in the S. A., and that too, only after suitably amending the E P., and not the decree in the First Appeal. It is said that the decree in AS 52/79 had merged in the decree in SA 584/82 (though the S. A. was dismissed in limine) and that consequently the former had ceased to exist and had become incapable of enforcement.

3. The question then is whether the dismissal of a Second Appeal by the High Court, at the admission stage, and without notice to the respondents, would result in a new decree in which the decree of the lower appellate court merges, or in the bringing into existence of something which displaces or extinguishes the former as an enforceable decree. So far as this Court is concerned, the matter was settled more than two decades ago by the decision reported in Chakkuvarkey v. Devassy Kathanar (AIR 1962 Kerala 104) where M. S. Menon J. (as he then was), speaking for a Division Bench, answered the question in the negative; but counsel for the petitioner contends that that decision can no longer hold the field in view of the later decision by another Division Bench in Chandrika Amma v. Mohammed (1984 KLT 677: 1984 KLJ 525). The question therefore requires careful consideration; and before proceeding to examine the trend of case law, it may perhaps be useful to look into the relevant statutory provisions also.

4. An appeal may be disposed of without any pronouncement on the merits of the case, in a number of situations. It may be dismissed for delay; and it may be dismissed, even if filed in time, under R.11(1) of 0.41 of the Code. It may sometimes be dismissed for failure to pay sufficient court-fee. Appeals get abated also on some occasions. These are all supposed to be situations where the appeals are dismissed or disposed of; but do such disposals results in decrees, as defined in the Civil Procedure Code?

5. S.2(2) of the Civil Procedure Code defines "decree" as the formal expression of an adjudication determining the rights of parties with regard to all or any of the matters in controversy in a suit, and goes on to add that the rejection of a plaint shall also be deemed to be a decree. The rejection of a plaint, say under 0.7 R.11, does not involve an adjudication determining rights of parties, and there cannot therefore be a formal expression of such an adjudication. (In fact, the rejection of a plaint under 0.7 R.11 does not by itself bar a fresh suit in respect of the same cause of action). That is probably why the legislature found it necessary to incorporate a deeming provision to bring such rejection within the scope of a 'decree'; and but for the deeming provision, rejection of a plaint wilt not obviously be a decree. There is no similar deeming provision regarding rejection of appeals, without notice to the other side. And one inference which could possibly be drawn from this circumstance is that the dismissal of an appeal in limine will not result in a decree (subject of course to a new provision in the Code introduced by the 1976 amendment, to be presently noted). No doubt there are decisions which invoke S.