Hon’ble Sudhir Agarwal, J.—Heard Sri Gajendra Pratap Singh, Senior Advocate, assisted by Sri Brijesh Kumar Singh, learned counsel for the petitioners, Sri V.K. Baranwal, Advocate, Sri V.S. Chaubey, Advocate, and Sri K.K. Mani, Advocate, for the respondents and perused the record.

2. The only contention is that though second appeal was dismissed as abated on 7.3.2008, but, for the purpose of limitation, it would commence from the date of Lower Court’s decree and not from the date when the second appeal was dismissed. Reliance is placed on a decision of Apex Court in Ratan Singh v. Vijay Singh, 2001 (1) SCC 469, Chandi Prasad and others v. Additional District and Sessions Judge, Hapur and others, AIR 2001 All 229 and Uma Shankar Sharma v. The State of Bihar and another, AIR 2005 Pat 94.

3. On the contrary, it is contended on behalf of respondent that limitation will start for execution after the decree has attained finality i.e., when the appeal is dismissed, and placed reliance on Banshidhar Durga Dutta v. Loon Karan Sethiya and others, 1983 Law Suit (All) 382.

4. The short question up for consideration in the case in hand is whether limitation for execution of a decree will commence from the date of decree or when judgement and decree of Trial Court attained finality after decision of appeal, first or second, under Section 96 or 100 C.P.C., as the case may be.

5. Article 136 of Limitation Act, 1963 provides for limitation for execution of decree and reads as under :

6. It has not been disputed by learned Senior counsel that appeal is a continuation of suit. Where an appeal is preferred against a judgement and decree of Trial Court or Lower Appellate Court to the higher Court, after decision of appeal, judgement of Court below merges with the judgement of Appellate Court and whether judgement passed in appeal is of reversal or modification or confirmation, it is wholly irrelevant. In UJS Chopra v. State of Bombay, AIR 1955 SC 633, the Court said:

“A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below.”

7. Applying the doctrine of merger in Kunhayammed v. State of Kerala, AIR 2000 SC 2587, the Court said that there is no distinction between order of reversal or modification and order of confirmation passed by appellate Court. In all the three cases, order passed by lower authority shall merge in the order passed by appellate authority whatsoever be its decision - whether of reversal or modification or confirmation. In Banshidhar Durga Dutta (supra), a Division Bench of this Court considered this very question. Therein original suit No. 234 of 1950 was decreed by Trial Court on 31.3.1955 and thereagainst appeal was dismissed on 6.4.1973. Thereafter, execution proceedings were initiated. The Execution Court held that decree having been put for execution after 12 years from the date of decree passed by Trial Court, it is barred by limitation. This view of Execution Court was reversed by this Court applying doc