VISWAMBHARAN Vs. PARAMESWARAN ASARY

JUDGEMENT

(1.) On 27-11-1978 the Trial Court passed a decree of mandatory injunction in OS 550/76, for demolition of a hut, within one month. The defendant appealed; and in IA 661/79 in AS 52/79 the District Court passed an order on 29-3-1979 staying "all execution proceedings" 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 EP 133/82 for execution of the decree. The judgment debtor objected. The executing court overruled the objections by order dated 13-1-83 and it is this order which is now under challenge.

(2.) EP 133/82 was admittedly an application for executing the decree in AS 52/79. The first contention urged on behalf of the petitioner (judgment debtor) is that as he had filed SA 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 SA, and that too, only after suitably amending the E P., and not the decree in the First Appeal. It is said that the decree in AS 52/79 had merged in the decree in SA 584/82 (though the SA was dismissed in limine) and that consequently the former had ceased to exist and had become incapable of enforcement.

(3.) 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 Kerala 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 Chandrika Amma v. Mohammed ( 1984 KLT 677 ). The question therefore requires careful consideration; and before proceeding to examine the trend of case law, it may perhaps be useful to look into the relevant statutory provisions also.