DHAULA Vs. MUZAMMIL HUSSAIN

JUDGEMENT

(1.) THIS revision under Section 115, CPC is directed against the order dated 5-12-03, passed by Civil Judge Class 1, Raisen in Execution Case No. 61 -A/74-94.

(2.) PLAINTIFF/respondent-DECREE holder instituted C. S. No. 61-A/76 against the defendant/petitioners and others seeking declaration of title, restoration of possession of suit lands and recovery of mesne profit. The suit aforesaid has been resisted. However, vide judgment dated 10-10-1977, it was decreed against defendant Nos. 8 and 9 directing them to restore possession of suit lands to the plaintiff/respondents. The suit against defendant Nos. 1 to 7 was dismissed. Being aggrieved, plaintiff/respondent preferred C. A. No. 10-A/88 before the District Judge, Bhopal. The appeal has been dismissed vide judgment dated 22-8-91. On 27-9-94, plaintiff/respondents-decree holder put the decree passed by Civil Judge in C. S. No. 61-A/76 into execution claiming possession of suit lands against defendant Nos. 8 and 9. Defendant Nos. 8 and 9 judgment debtors filed objection as to executability of decree inter alia on the grounds that, there being no decree for possession in C. S. No. 61-A/76, they could not be directed to deliver possssion and execution application filed on 27-9-94 was barred by time as has been filed beyond 12 years of the decree, as provided in Article 136 of the Limitation Act, 1963. The Executing Court vide impugned order dated 5-12-2003 held that the decree in C. S. No. 61-A/76 is not merely a declaratory decree, but directs delivery of possession by defendant Nos. 8 and 9 to the plaintiff/respondent-decree holder. The judgment-decree dated 10- 10-77 passed by Civil Judge in C. S. No. 61-A/76 merged into the appellate judgment-decree dated 22-8-91, therefore, the execution filed on 27-9-94 is within time as provided in Article 136 of the Limitation Act. Accordingly, the objection as to executability of decree as has been preferred by the petitioners has been dismissed.

(3.) C. S. No. 61-A/76 was filed by the plaintiff/respondent for declaration and restoration of possession of suit lands and recovery of mesne profit, however, vide judgment dated 10-10-77 (Annexure A-1) it has been decreed against defendant Nos. 8 and 9 only for declaration and restoration of possession of suit land. The suit as against remaining defendants was dismissed. Plaintiff/respondent therefore, preferred C. A. No. 10-A/88 before the District Judge, Bhopal impleading defendant Nos. 8 and 9 as respondents. The appeal aforesaid was decided vide judgment dated 22-8-91 (Annexure A-2 ). Therefore, the judgment-decree dated 10-10-77 passed by Civil Judge merged into the judgment-decree dated 22-8-91 passed by the District Judge. It has been contended that plaintiff/respondent's regular first appeal aforesaid under Section 96 of the CPC was filed questioning the legality of the decree in relation to a part of claim dismissed by the Civil Judge vide judgment dated 10-30-77, while the decree claim against defendant Nos. 8 and 9 did not form subject-matter of appeal excluding applicability of principle of merger, this part of decree had attained finality on 10-10-77 itself. The suit of the plaintiff/respondent was for declaration, restoration of possession and recovery of mesne profit. Vide judgment dated 10-10-77, it was decreed against defendant Nos. 8 and 9 only for declaration and recovery of possession. The relief of mesne profit as claimed has been dismissed. The suit in its entirety was dismissed as against the remaining defendants. This necessitated filing of first regular appeal under Section 96 before the District Judge, wherein defendant Nos. 8 and 9 also were impleaded as respondents. On facts aforesaid, the Executing Court held that judgment-decree dated 10-10-77 (Annexure A-1) passed by Civil Judge merged into the judgment-decree dated 22-8- 91 passed by District Judge in C. A. No. 10-A/88.