1. Civil revision petition challenging trial court order that execution petition was not barred by limitation due to merger of decrees. (Para 1 , 2 )
Back
Next 
2026 Supreme(Online)(Ker) 63118
IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. Ravi, J
SREE SUBRAHMANIA KSHETERA SEVA SAMITHI REPRESENTED BY ITS PRESIDENT C. ASHOKAN – Appellant
Versus
UNNIKRISHNAN M – Respondent
CRP 234/2024
Advocates:
For the Appellants/Petitioners: K.S. Hariharaputhran, Pinku Mariam Jose, K.M. Fathima
For the Respondents: R. Surendran, Raj Carolin V.
For the Appellants/Petitioners: K.S. Hariharaputhran, Pinku Mariam Jose, K.M. Fathima
For the Respondents: R. Surendran, Raj Carolin V.
The doctrine of merger applies when a statutory appeal is filed and disposed of by a superior court, including dismissals as 'not pressed'. In such instances, the period of limitation for executing the decree begins from the date of the superior court's decree.
Headnote:(A) Limitation Act, 1963 - Article 135 - Code of Civil Procedure, 1908 - Section 100 - Execution of decree for mandatory injunction - Doctrine of Merger - Limitation period for computing execution - Where a statutory appeal is filed before a superior forum and subsequently dismissed as not pressed, the decree of the inferior court merges into the decree/order of the superior court - The period of limitation for execution of the decree shall commence from the date of the decree passed by the superior court (Paras 5, 6 and 7).
(B) Doctrine of Merger - Scope and applicability - When a decree is subjected to a remedy before a superior forum and the superior court disposes of the lis, whether by setting aside, modifying, or confirming the order, the decree of the superior court becomes the final and operative decree - Dismissal of an appeal because the appellant chooses not to proceed is an affirmation of the lower court's decree and attracts the doctrine of merger, distinguishing it from a dismissal for non-prosecution or dismissal on the grounds of delay (Paras 5, 7 and 8).
Facts of the case:
A suit for mandatory injunction was decreed. The defendants filed an appeal before the first appellate court, which was dismissed. Subsequently, a second appeal was preferred before the superior court. This second appeal was dismissed as not pressed, and a decree was drawn up by the superior court. An execution petition was subsequently filed. The judgment debtors contended that the execution petition was barred by limitation under Article 135 of the Limitation Act, arguing that the three-year period should be calculated from the date of the first appellate court's decree because the second appeal was not decided on merits.
Findings of Court:
The court held that the execution petition is not barred by limitation. Since the defendants availed of a statutory remedy in the form of a second appeal and the superior court dismissed it, resulting in a decree, the decree of the lower courts merged into the decree of the superior court.
Issues: Whether the dismissal of a second appeal as "not pressed" leads to the merger of the lower court's decree into the superior court's order, thereby resetting the limitation period for filing an execution petition under the Limitation Act.
Ratio Decidendi: The court reasoned that if a statutory appeal is filed and the superior court disposes of it—even if the appellant chooses not to proceed—it constitutes an affirmation of the lower court's decree. The doctrine of merger applies because a superior jurisdiction capable of reversing, modifying, or affirming the order was exercised. This is distinct from a dismissal of an application for condonation of delay, where no decree is passed by the superior court. Consequently, the decree of the superior court becomes the operative decree for the purpose of computing the limitation period for execution.
Result: The civil revision petition fails and is dismissed.
Legal Category Hierarchy
Table of Contents
2. Judgment debtor argued limitation runs from first appellate decree, not second appeal, as there was no merits decision. Decree-holder argued otherwise. (Para 2 , 3 , 4 )
3. Court held dismissal of statutory second appeal as not pressed constitutes a decision on merits, attracting the doctrine of merger. (Para 5 , 6 , 7 )
4. When a statutory appeal is dismissed as not pressed after admission, the lower court decree merges with the appellate decree, starting limitation from the appellate decree date. (Para 7 , 10 )
5. Civil revision petition dismissed. Interim stay continued for three months conditioned on judgment debtor furnishing affidavit to surrender vacant possession. (Para 10 )
6. Does the doctrine of merger apply when a statutory appeal is dismissed as not pressed?
Yes. Dismissal of an admitted statutory appeal as not pressed is a decision on merits, causing the lower court decree to merge with the appellate decree. (Para 5 , 6 , 7 )
7. What is the starting point for limitation under Article 135 of the Limitation Act for executing a mandatory injunction decree?
The period of limitation for execution starts from the date of the final decree, which is the decree of the superior court after merger, if applicable. (Para 1 , 10 )
8. Is a dismissal of an appeal for want of prosecution or on the ground of delay equivalent to a dismissal as not pressed for the purpose of merger?
No. Dismissal for non-prosecution or for failure to condone delay does not involve a merits decision and may not attract the doctrine of merger. (Para 7 )
ORDER
The civil revision petition has been filed challenging the order dated 06.06.2024 in EP No.423 of 2023 in OS No.450 of 1999 on the file of the Munsiff Court, Kuthuparamba. The petitioner is the judgment debtor. The suit was filed praying for a mandatory injunction directing the defendants to hand over plaint A, C and D schedule properties to the plaintiffs and restraining the defendants from pretending any possession over the plaint schedule property by a permanent prohibitory injunction. The defendants filed A.S.No.148 of 2009 before the Sub Court, Thalassery, which was dismissed by judgment dated 20.10.2016. The defendants thereafter preferred RSA No.678 of 2017 before this Court, which was dismissed on 23.02.2022 as not pressed. It is admitted that a decree was drawn up by this Court in the Second Appeal. E.P.No.423 of 2023 was filed on 08.08.2023 seeking to execute the decree. The judgment debtors took a contention that the execution petition is barred by limitation. The trial court by order dated 06.06.2024 held that the execution petition is not barred by limitation since the decree of the First Appellate Court has merged with the judgment and decree dated 23.02.2022 in RSA No. 678 of 2017. It is submitted that subsequently delivery has been effected and decree has been satisfied.
2. The counsel for the petitioner contended that the finding of the execution court that there is a merger is legally not sustainable. It is submitted that in a decree for mandatory injunction, the relevant article of the schedule to the Limitation Act which applies is Article 135, which reads as follows:
It is hence submitted that the period available is three years from the date of the decree and if the decree in A.S.No.148/2009 is considered as an effective decree, then the period of limitation starts running from 20.10.2016. Regarding the Second Appeal, it is submitted that the Second Appeal was not even admitted and was dismissed without any argument on the basis of a memo filed on behalf of the judgment debtor. It is submitted that in order to constitute a merger there should be a decision by the superior forum on merits after entertaining an argument.
3. The counsel placed reliance on the judgments in Kunhayammed V. State of Kerala (2000 (6) SCC 359), Chandi Prasad V. Jagdish Prasad (2004 (8) SCC 724), Anand Narayan Shukla V. Jagat Dhari (2026 SCC OnLine SC 827), Shanmugavel Nadar V. State of Tamil Nadu (2002 (8) SCC 361), Babu Singh V. Jalandhar Improvement Trust (2026 KHC 7084), Ratansingh V. Vijaysingh and Ors. [(2001) 1 SCC 469], Shanthi V. T.D. Vishwanathan and Another [(2019) 11 SCC 419] and Surinder Pal Soni V. Sohan Lal (D) Thru LR. and Ors. (2019 (9) scale 564) in support of his arguments.
4. The counsel for the respondents submitted that going by Article 135 of the Limitation Act, what is relevant is the date of the decree and not the date on which a decree became enforceable. It is submitted that in the case on hand, the decree in the Second Appeal has been passed on 23.02.2022 and the execution petition has been filed on 08.08.2023 and hence no further enquiry is required in order to hold that the execution petition is maintainable. As regards the contention that there should be a decision on merits, the counsel submitted that the Second Appeal was filed in 2017 and the sole respondent, who is the plaintiff, died pending the Second Appeal and his legal representatives were impleaded by the judgment debtors as additional respondents in the appeal and it was thereafter that a memo was filed expressing their intention not to proceed further with the appeal. It is hence submitted that the conduct tantamounts to accepting the trial and first appellate decree and, the judgment and decree that followed cannot be treated as a judgment which was rendered for non-prosecution as sought to be made out by the counsel for the judgment debtor. It is further submitted that the decisions relied on by the counsel for the judgment debtors a
