IMPORTANT POINT
The doctrine of merger applies to decrees for specific performance, allowing the trial Court to retain jurisdiction even after an appellate decree, and the amended decree resets the timeline for compliance.

JUDGMENT :

1. The challenge in this Original Petition is to the common order dated 05.01.2017 passed by the Subordinate Judge's Court, Kozhikode, in I.A.Nos. 3204/2015, 4409/2015 and 1757/2016 in O.S.No.463/2004.

2. The petitioner is the defendant in a suit for specific performance of an agreement for sale. The respondent is the plaintiff. The trial Court decreed the suit on 31.08.2006, directing the defendant to execute the deed of conveyance on receiving the balance sale consideration. In the decree, the trial Court has also directed the plaintiff to deposit the balance sale consideration within three months from the date thereof.

3. The plaintiff preferred an appeal, RFA No.257/2007, before this Court challenging the trial Court's refusal to award the costs of the suit. This Court, as per judgment dated 16.10.2014, dismissed the appeal confirming the trial Court's judgment.

4. After the disposal of the appeal by this Court, it came to the notice of the plaintiff that the amount paid as advance sale consideration was not taken into consideration in the decretal portion. Therefore, on 29.12.2014, the plaintiff filed I.A.No.55/2015 under Section 152 of the Code of Civil Procedure to correct the decree. The trial Court allowed the application on 12.06.2015, and the decree was amended on the same day. On 01.07.2015, the plaintiff obtained a certified copy of the amended judgment and decree. On 21.07.2015, he deposited the balance sale consideration before the Court.

5. The plaintiff filed I.A.No.3204/2015 and the draft sale deed to execute and register the sale deed in his name through the Court.

6. The defendant filed I.A.No.4409/2015 seeking rescission of the agreement dated 21.07.2004 under Section 28(1) of the Specific Relief Act . In the application, the defendant inter alia contended that as per the decree dated 31.08.2006, the plaintiff must deposit the balance sale consideration within three months.

7. The defendant also filed I.A.No.1757/2016 for issuing a Commission to ascertain the present market value of the plaint schedule property, contending that as years have passed after the decree, the market value of the property was substantially escalated causing prejudice to her.

8. The trial Court dismissed all the above interlocutory applications as per the impugned common order .

9. I have heard the learned counsel for the petitioner/defendant and the learned Senior Counsel for the respondent/plaintiff.

10. The learned counsel for the petitioner/defendant submitted that as the plaintiff challenged the decree to the extent it refused to grant costs, there is no merger of the appellate decree. The learned counsel further submitted that even after passing the appellate decree without making an application for extension of time as contemplated in Section 28 of the Specific Relief Act, the plaintiff proceeded to get the sale deed executed. The learned counsel submitted that without extending the time specified by the decree, the Court could not proceed with the applications preferred by the decree-holder.

11. The learned Senior Counsel, relying on a series of precedents, contended that the doctrine of merger squarely applies to the facts of the case. The learned Senior Counsel relied on Brahmanand v. Rajan [2012 (4) KLT 540] Frederick Paul Manohar v. Mohanan [2017 (1) KLT 417] and Surinder Pal Soni v. Sohan Lal [(2020) 15 SCC 771] to support his contentions.

12. The Black’s Law Dictionary defines 'merger' as “(1) The act or an instance of combining or uniting. ……… (5) Civil Procedure: The effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff’s rights are confined to enforcing the judgment.”

13. “Merger” means to sink or disappear in something else; be swallowed up, lose identity or individuality. (Marfield v. Cincinnati, D. & T. Traction Co., 144 N.E. 689, 696, 111 Ohio St.139, 40 A.L.R 357). The doctrine of “merger”, under which cause of action is