Mere pendency of an appeal does not prevent the execution of a decree, and the period of stay is to be excluded from the period of limitation for execution of the decree.

B. S. CHAUHAN, J.

( 1 ) THE revision has been filed against the order dated 14-9-1993 passed in Execution Case No. 10/1993, by which the application under Section 47 of the code of the Civil Procedure, 1908 (for short, "the Code") filed by the petitioner has been rejected.

( 2 ) THE facts and circumstances giving rise to this revision are that plaintiff/non-petitioners filed a suit against the defendant-petitioner seeking the relief of perpetual injunction. The suit was decreed on 21-5-1982 by the trial court. The appeal against the said judgment and decree was dismissed by the first appellate court on 28-11-1989 and the second appeal was dismissed by this court vide judgment and order dated 16-3-1993. During pendency of the first and the second appeals, no interim injunction had been granted. Plaintiff/non-petitioners filed an Execution Application on 4-5-1993 for enforcement of the mandatory decree, i. e. removal of the wall from the suit property. Defendant-petitioner filed objection under Section 47 of the Code on the ground that in view of the specific provisions of Article 135 of the Limitation Act, 1963 (for short, "the Act, 1963"), mandatory decree could be executed within the period of three years from the date the decree becomes executable from the date fixed by the Court for the performance of such decree. The Executing court rejected the said objection. Hence this revision.

( 3 ) MR. K. N. Joshi, learned counsel for the petitioner, has raised the issue that in view of the specific provisions of Article 135 of the act, 1963, the mandatory decree could be enforced-only within the period of three years from the date of the decree of the trial court for the reason that there has been no stay of execution of that decree by the first or the second appellate courts.

( 4 ) ON the contrary, Mr. Dinesh Maheshwari, learned counsel for the plaintiff/non-petitioners, has submitted that as the judgment and decree of the trial court has merged into the judgment and decree of the first and the second appellate courts, though the said courts have merely affirmed the judgment and decree of the trial court, the decree becomes executable from the date of dismissal of the second appeal inspite of the fact that there had been no interim stay of execution proceedings by the first and the second appellate courts and, therefore, no interference is called for in the revision.

( 5 ) I have considered the rival submissions made by the learned counsel for the parties and perused the record of the case.

( 6 ) ARTICLE 135 of the Act, 1963 specifically provides that the application for execution of mandatory decree can be filed within three years from the date of the decree and that requires to be read with Section 15 (1) of the Act, 1963, which reads as unden:-"in computing the period of limitation for any suit or application for execution of a decree, the institution or execution of which has been stayed by mention or order, the time of continuance of the injunction or order the date on which it was issued or the day on which it was withdrawn, shall be executable. "

( 7 ) IF both the provisions are read together, it makes it clear that in case the interim stay has not been granted by the appellate court (s)the decree of the trial court becomes executable. Construing the provisions otherwise would render the provisions of Section 15 (1) of the Act, 1963 nugatory, which is not permissible It leads to the conclusion that mere pendency of an appeal would not permit the decree-holder to sleep over the matter and wake up after the decision of the appeal (s ). Even in absence of the provisions of Section 15 (1) of the Act, 1963, excluding the period, for which the proceedings had been stayed, is to be understood as implied in it as held by the Honbie Supreme Court in the Director of inspection of Income Tax (Investigation), new Delhi and Anr. v. M/s. Pooran Mall and sons and Anr. , wherein the Apex Court held that it is well established