K. KALYANASUNDARAM, J.

1. This revision arises out of the order passed by the executing court in EPR No. 262 of 2004 in O.S. No. 124 of 1982.

2. The first respondent Bank had instituted a suit in O.S. No. 124 of 1982 against the petitioner and the 2nd respondent for recovery of a sum of Rs. 90,941.50. However, after trial, the Sub Court, Udumalpet partly decreed the suit for Rs. 74,739.47 alongwith interest. Dissatisfied with the judgment and decree, the Bank preferred an appeal in A.S. No. 292 of 1985. This Court, allowed the appeal on 19.02.1998. Thereupon, the decree holder levied an execution petition to recover the decree amount. The petitioner filed his counter opposing the execution stating that the decree is barred by limitation. The suit was decreed on 29.06.1983 and the execution application filed on 06.08.1999 is barred under Article 136 of the Limitation Act. The executing court rejected the case of the judgment debtor and proceeded with execution. Challenging the order, the present revision petition is filed.

3. Mr. V. Nicholas, learned counsel for the petitioner submitted that the suit was partly decreed on 29.06.1983 and only for disallowed portion, the plaintiff filed an appeal and therefore the limitation has to be calculated from the date of the original decree. The learned counsel has relied upon a judgment of the Hon'ble Supreme Court in State of Madras vs. Madurai Mills Co. Ltd. AIR 1967 SC 681.

4. On the other hand, Mr. T. Venugopalan, learned counsel for the respondents submitted that the decree passed by the trial court has merged with the decree passed in A.S. No. 292 of 1982 and therefore the execution petition is in time. The learned counsel relied upon a judgment of the Hon'ble Apex Court in Chandi Prasad and Others vs. Jagdish Prasad and Others, 2004 (4) MLJ 141 (SC) and a judgment of Madurai Bench of this High Court in Karuppaiya Muthuraja vs. V. Karuppaiya Muthuraja & Another, 2011 (2) LW 345.

5. As per article 136 of the Limitation Act, an execution petition has to be filed within a period of 12 years from the date of decree. Admittedly, the suit was decree in part and the plaintiff has filed the appeal challenging the decree of the trial court. The Appellate Court has allowed the appeal and decreed the suit in entirety by judgment and decree dated 19.02.1998.

6. It is settled law that the appeal is to be considered to be a continuation of the suit and the decree of the trial court merges with the decree of the Appellate Court. Even if there is any modification made by the Appellate Court, the decree of the Appellate court supercedes the decree of the trial court. Limitation would start from the date of decree passed by the appellate court and not by the trial court.

7. In Chandi Prasad's case cited supra, the Hon'ble Supreme Court has held as follows:-

"20. It is not disputed that all decrees; be it original or the appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation.

21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in presence of both parties, the same would replace the judgment of the lower court and only the judgment of the High Court would be treated as final. See U.J.S. Chopra vs. State of Bombay, AIR 1955 SC 633. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues."

8. The same view was followed by the Madurai Bench of this Court in Karuppaiya Muthuraja's case, cited supra. In my considered opinion, the decision of the Hon'ble Supreme Court and this Court referred supra is applicable to be facts of the present case.