PRADEEP JAIN Vs. URMILA DEVI

JUDGEMENT

(1.) The only question mooted in the present writ petition is whether the limitation for counting the period of twelve years prescribed for execution of decree for possession would start running from the date of judgment of the trial Court or from the date of the dismissal of revision when the revision was dismissed for want of prosecution. Shorn of unnecessary details, the facts which are no longer in dispute and relevant for the present purposes may be noted in brief. The original suit No. 49 of 1979 was instituted by Mukut Bihari Lal (predecessor in interest of the respondent Nos. 1 to 4 herein) against Shri Mahaveer Prasad Jain (predecessor in interest of the petitioners) and Shri Raj Bahadur Jain for recovery of arrears of rent, damages and ejectment on the allegations that the defendants were the tenant. The suit was decreed on 23.2.1980. The decree was signed on 27.2.1981. The matter was carried by the defendant in revision being revision No. 98 of 1981 which was ultimately dismissed for want of prosecution on 15th of October, 1982 and the formal order was signed on 26th November, 1982. The decree was put to execution being Execution Application No. 54 of 1994 on 11th October, 1994. The petitioners herein who are the heirs of judgment debtor preferred objection under Section 47 of CPC on the allegations that the Execution Application is barred by time as it was filed beyond period of twelve years reckoned from the date of judgment of trial Court. The said plea was not found favour with the Executing Court who on 5th January, 2005 held that the period of limitation would start running from 15th October, 1982 when the revision was dismissed in default and from that period the Execution Application is within twelve years. The said view has been affirmed in SCC Revision No. 5 of 2005 by the Court below by its judgment and decree dated 13.12.2010.

(2.) The learned counsel for the petitioners submitted that ordinarily the doctrine of merger applies when the judgment of lower Court is carried to higher Court and decision is given by the higher Court on merits. The judgment of the lower Court merges with the judgment of the higher Court. According to him if the appeal or revision is not decided by higher Court as the case herein and it is dismissed otherwise on merits i.e. for want of prosecution, on the question of limitation, Court fees etc., the judgment of the lower Court does not merge with that of the Appellate Court/higher Court.

(3.) In support of the contention he has placed reliance on certain decisions which will be considered at the appropriate stage.