V. VISWAMBHARAN Vs. V.K. PARAMESWARAN ACHARY

JUDGEMENT

(1.) ON 27 -11 -1978 the trial court passed a decree of mandatory injunction in O. S. 550/76, for demolition of a hut, within one month. The defendant appealed; and in I. A. 661/79 in A. S 52/79 the District Court passed an order on 29 -3 -1979 staying "all execution proceeding" in the suit, pending disposal of the appeal. The appeal was eventually dismissed on 5 -2 -1982. On 8 -6 -82 the decree holder filed E. P. 133/82 for execution of the decree. The judgment debtor objected. The executing court over -ruled the objections by order dated 13 -1 -83 and it is this order which is now under challenge. E. P 133/82 was admittedly an application for executing the decree in A..S. 52/79. The first contention urged on behalf of the petitioner (judgment -debtor) is that as be had filed S. A. 584/82 before this Court, against the judgment and decree of the District Court, what could have been put into execution was only the decree in the S. A., and that too, only after suitably amending the E. P and not the decree in First Appeal. It is said that the decree in A. S. 52/79 had merged in the decree in S A. 584/82 (though the S. A. was dismissed in limine) and that consequently the former had ceased to exist and had become incapable of enforcement.

(2.) THE question then is whether the dismissal of a Second Appeal by the High Court, at the admission stage, and without notice to the respondents, would result in a new decree in which the decree of the lower appellate Court merges, or in the bringing into existence of something which displaces or extinguishes the former as an enforceable decree. So far as this Court is concerned, the matter was settled more than two decades ago by the decision reported in Chakkuvarkey v. Devassy Kathanar ( : AIR 1962 Ker 104) where M. S. Menon J (as he then was), speaking for a Division Bench, answered the question in the negative; but counsel for the petitioner contends that that decision can no longer hold the field in view of the later decision by another Division Bench in Chandrtka Amma v. Mohammea ( : 1984 KLJ 525) The question therefore requires careful consideration; and before proceeding to examine the trend of case law, it may perhaps be useful to look in to the relevant statutory provisions also.

(3.) SEC . 2 [2] of Civil Procedure Code defines "decree" as the formal expression of an adjudication determining the rights of parties with regard to all or any of the matters in controversy in a suit and goes on to add that the rejection of a plaint shall also be deemed to be a decree. The rejection of a plaint, say under order 7 Rule II, does not involve an adjudication determining rights of parties, and there cannot therefore be a formal expression of such an adjudication. In fact, the rejection of a plaint under Or. 7 R.II does not by itself bar afresh suit in respect of the same cause of action). That is probably why the legislature found it necessary to incorporate a deeming provision to bring such rejection within the scope of a 'decree' and but for the deeming provision, rejection of a plaint will not obviously be a decree. There is no similar deeming provision regarding rejection of appeals, without notice to the other side. And one inference which could possibly be drawn from this circumstance is that the dismissal of an appeal in limine will not result in a decree (subject of course to a new provision in the. Code introduced by the 1976 amendment, to be presently noted). No doubt there are decisions which invoke Sec. 107 [8] of the Code to hold that the rejection of an appeal could also be treated in the same fashion as the rejection of a plaint, for the purpose of being treated as a decree. This approach was not being uniformly approved even before Act 104/76; and after the coming into force of the said Amending Act, the reasoning, if I may say so with great respect, has become more tenuous.