SOMU EKAMBARESWARA RAO Vs. NIRSANKARA RAO VEERAMMA

JUDGEMENT

(1.) This revision is filed by the decree holders in E P No. 83 of 1977 on the file of the First Additional District Munsif's Court, Guntur. The suit filed for prossession of the scheduled property was decreed by the trial court on 28-3-1982. The appeal filed against that decree by the defendants was dismissed on merits on 28-1-1964. The second appeal filed against that dismissal by the defendants in this court was dismissed at the admission stage on 1-2-1965. Thereafter, on 31-1-1977 the present Execution Petition was filed for delivery of possession of the schedule property. The respondent-judgment debtors filed a counter stating that the Execution Petition is barred by limitation The lower court considered the rival contentions and held that the Execution Petition is barred by limitation since it was filed after twelve years from 28-1-1964 the date of disposal of the first appeal. In so far as the Second appeal is concerned, the lower court held that its disposal has nothing to do with the enforceability of the decree or with the starting point of limitation since it was dismissed at the admission stage. The lower court relied on the judgment reported in Chakkuvarkey v Davassy Kathanar (A I R 1962 Kerela 104). It is against that order of dismissal of the Execution Petition on the ground of limitation, the present revision is filed.

(2.) Mr. T Veerabhadraiah, the learned counsel tor the petitioners submitted that as per Article 136 of the Limitation Act the period of 12 years has to be reckoned from the date of enforceability of the decree which the present case, is 1-2-1965, the date on which the Second Appeal was dismissed at the admission stage and if so reckoned, the E P having been filed on 31-1-1977 is well within the period of limitation. The learned counsel contended that the appeal is a continuation of the suit and the enforceability of the decree starts only from the date of final disposal of the appeals provided under the Code of Civil Procedure. Where no appeal is filed the limitation starts from the date of the original decree. If only one appeal is filed the limitation starts from the date of the disposal of that appeal and where a second Appeal is filed against the judgment of the lower appellate Court, the limitation starts from the disposal of the Second Appeal. The learned counsel further contended that once the second appeal is disposed of, the decree of the trial court and the lower appellate court will merge in the decree of the second appellate court. On the question of merger of the decree of the lower courts, he submitted that whether the appeal is one disposed of at the admission stage or after hearing both the parties on merits it makes no difference for purposes of merger of the decrees of the lower courts into that of the appellate Court. Therefore, in the present case the dismissal of the second appeal at the admission stage is of no significance for purposes of the lower courts' decrees being merged into the decree of the second appeal.

(3.) On the other hand, Mr. Hanumantha Rao, the learned counsel for the respondent-judgment debtors submitted that the date of enforceability of the decree in the present case is 28-1-1964 the date on which the first appeal filed by the respondents was dismissed and, therefore, the execution petition filed on 31-1-1977 is beyond the period of limitation of 12 years from that date. He also submitted that the date of dismissal of the second appeal is of no consequence since the dismissal was at the admission stage without any notice to the petitioner-decree holders and, therefore, this dismissal cannot be taken advantage of for purposes of reckoning the period of limitation. The learned counsel tried to clarify that the judgment in the second appeal is not one delivered after hearing the parties nor it is on merits as contemplated by Ordor 41 Rules 15 and 16 of the Civil Procedure Code. Under Order 41 Rule 15 notice will be ordered to the other side calling upon them to appear on a particular date failing which the matter would be decided exparte. Under Order 41 Rule 16 the appellant shall be heard on the date so fixed under Rule 15 or on a later date. Then, in case of non-dismissal of the appeal at once, the respondent shall be heard and again the appellant in reply Since all this did not take place in the present matter the learned counsel submitted that the judgment in second appeal is merely one under Order 41 Rule 11 C.P.C. whereunder the High Court is only obliged to notify the dismissal of the Second Appeal. The learned counsel next submitted that in Article 182 of the old Limitation Act of 1908 with reference to the starting point of limitation the words 'the decree or order becomes enforceable' were not there, and the Limitation was 12 years from the date of decree sought to be executed as per section 48 of the Code of Civil Procedure, whereas under the present article 136 of the new Limitation Act, 1963 for execution of the decree the period of limitation is 12 years the starting point being the date when tht decree or order becomes enforceable. Since the date of enforceability, according to the learned counsel, is 28-1-1964 (date of disposal of the 1st appeal) the execution petition filed on 31-1-1977 being beyond 12 years is barred by limitation.