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Kerala High Court
P.R.RAMAN
P.T.Xavier - Appellant
Versus
Lucy V.Papaly - Respondent
Decided On : 11/15/2001
Limitation Act 1963 – Sections 15 & 135 – Time Limitation – Appeal of Decree – Findings of – Held, In view of the authoritative pronouncement of the Supreme Court and the Full Bench decision of this Court, it is therefore to be held that when the decree is appealed against the enforceable decree is that of the appellate court whether the appellate court dismisses or varies the judgment of the court below. – Even though the trial court decree may be enforceable in the absence of any interim order of stay passed by the appellate court, that by itself will not show that the period of limitation for executing the decree starts from the date of the trial court decree because applying the principle of merger, the decree that is executable is that of the appellate court. – So viewed, the court below was perfectly right in holding that the petition was not barred by limitation and that the same was filed within time. – Court took the view that as a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement – It was also held that consequence of the confirmation or affirmance of the decision of the inferior court by the superior court, is to render the decision of the superior court alone to subsist and to be operative and capable of enforcement. – It is, therefore, held that the period starts from the date of the appellate court decree. – Whether the appeal was filed by the plaintiff or the defendant has no relevance in deciding the question of merger. – It is the final decree which becomes executable.
ORDER :- This revision petition is directed against the order dated 16-7-2001 in E.P. No. 226 of 2000 in O.S. No. 283 of 1984 on the file of the Principal Munsiff's Court, Kochi. The judgment-debtor is the revision-petitioner herein. A decree for mandatory injunction was granted by the trial Court on 30-5-1994. Against the said decree, appeal was preferred by the judgment-debtor as A. S. No. 55 of 1994 before the District Court which was also dismissed. There was a Second Appeal, S.A. No. 830 of 1997 before this Court which was also dismissed by this Court on 9-7-1999. As the defendant did not comply with the decree for removing the structures put up by him, those structures had to be removed for which an Execution Petition was filed.
2. The judgment-debtor filed objection contending that the petition is not maintainable as it was barred by law of limitation. It is his case that on two earlier occasions, the decree-holder had filed Execution Petitions and both were dismissed for default. It is the admitted case that if the period of limitation is calculated from the date of the decree of the trial Court, the present Execution Petition will be barred by the law of limitation. However, if the period is reckoned from the date of decree of the Second Appeal, then the Execution Petition is within time. The trial Court held that since the Second Appeal was disposed of on 9-7-1999 and the Execution Petition being filed within three years from 9-7-1999, the petition is within time and hence the objection was overruled. It is that order which is under challenge in this revision petition.
3. The learned counsel appearing for the petitioner has contended that as the decree was passed in this case by the trial Court on 30-5-1994 and the present Execution Petition having been filed only in the year 2000, the same is not filed within the time prescribed by law, namely, within three years from the date of the decree. According to him, as per Article 135 of the Limitation Act, 1963, the period of limitation prescribed is three years and the time begins to run as per column three of Article 135, from the date of the decree or where a date is fixed for performance, such date. Hence, according to counsel, when the trial Court decree is merely confirmed in appeal or Second Appeal, the decree sought to be executed is only the decree passed by the trial Court and in the absence of any stay of execution of the decree, time will begin to run from the date on which the decree was passed by the trial Court. In this connection, he also drew my attention to S. 15(1) of the Limitation Act (hereinafter referred to as "the Act") to contend that what period could be excluded having been provided specifically under S. 15(1) while computing the period of limitation the time will start running from the original decree unless otherwise specified. It is his case that as per S. 15(1) of the Act in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, alone shall be excluded. He submits that when the period of stay has been specifically excluded as per S. 15(1) of the Act, the position is that when once there is no stay of execution of the decree granted by an appellate Court, then automatically the period will begin to run from the date of the original decree. According to him, S. 15(1) of the Act will become redundant if it is held that the period begins to run only from the date of the appellate Court decree.
4. According to the learned counsel appearing for the respondent, when the decree has been appealed against in exercise of a right conferred by the statute, the matter becomes final only when the appeal is disposed of and it is settled principle that when the appeal or Second Appeal is disposed of, whet
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