TMI Blog2004 (10) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellants wherein a preliminary decree was passed on 25.4.1962. A final decree proceeding was thereafter initiated whereupon the final decree was prepared on 7.5.1968. On or about 6.8.1968 an execution case marked as Execution Case No. 279 of 1968 was filed by the Respondents. As against the said final decree, however, in the meanwhile a First Appeal had been filed which was marked as Civil Appeal No. 502 of 1968. It was dismissed by an order dated 21.3.1969. A Second Appeal thereagainst was preferred by the Appellants which was allowed and the matter was remitted back to the Appellate Court for determining the merit of the appeal afresh. The first Appellate Court again dismissed the appeal on 4.1.1974. In the meanwhile, the said execution petition was dismissed, presumably because the Second Appeal filed by the Appellants was allowed. Against the judgment and decree dated 4.1.1974 passed by the Appellate Court in Civil Appeal No. 502 of 1968, the Appellants herein preferred a Second Appeal before the High Court which was marked as Second Appeal No. 481 of 1974. The said appeal was dismissed by the High Court on 18.4.1985. A formal decree pursuant thereto was drawn on 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In any event, the learned counsel would contend that a Second Appeal against an appellate decree being entertainable only on limited ground, namely, on a substantial question of law, doctrine of merger will have no application in relation thereto and in that view of the matter, limitation to file an execution application will be deemed to have been running only from 4.1.1974 and not with effect from 18.4.1985. Ms. Sandhya Goswami, learned counsel appearing on behalf of the Respondents, however, supported the impugned judgment. CHANGE IN LAW: A decree is defined in Section 2(2) of the Code to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. As against a judgment and decree unless otherwise restricted, a First Appeal would be maintainable under Section 96 of the Code and a Second Appeal under Section 100 thereof. A decree within the meaning of Section 2(2) of the Code would be enforceable irrespective of the fact whether it is passed by the trial court, the first App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the first execution petition was maintainable at different stages of same proceedings but the same used to be filed within a period of 12 years under the Code of Civil Procedure and such application was required to be made in a period of 3 years from various points of time as specified in Article 182 of the old Limitation Act, the Parliament thought it expedient to carry out an amendment. The reasons for bringing on the statute book, the present Article 136 may be noticed. By reason of the said amendment, the filing of the execution petition has been simplified and the difficulties faced for computation which used to arise for grant of stay or not has become immaterial. In terms of Article 136 of the Act, thus, a decree can be executed when it becomes enforceable. Article 136 substantially reproduces the provisions of Section 48(1) of the Code of Civil Procedure which by reason of the Act stands repealed. In that view of the matter, the Parliament thought it fit to provide for one period of limitation for an application for execution in stead and place governing each of the several execution applications which the decree holder can make within a period of 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. "To merge" means to sink or disapp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
