1992 PLP 241 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This appeal through leave to appeal, filed by a decree‑holder in a pre‑emption suit, is directed against the High Court's judgment dated 18‑4‑1990, passed in revision, whereby his execution petition was dismissed as barred by time.

2. The facts are not in controversy. The trial Court decreed the suit for possession of the land in dispute, in favour of the appellant on 27‑4‑1981. The respondents' first appeal against the judgment and decree of the trial Court was dismissed on 18‑10‑1981. Their revision before the High Court met the same fate. Consequently, the decree of the First Appellate Court was affirmed. The judgment and decree of the High Court are dated 18‑i1‑1986. On 5‑1‑1987, the appellant moved an execution petition under Order 21, rule 11, C.P.C., which embodied the particulars of the decree of the trial Court the First Appellate Court as well as of the High Court. The judgment‑debtor raised the plea that the execution petition was barred by time. The Executing Court turned down the objection and found that the execution petition was well within time. Against the orders of the Executing Court, the respondents preferred an appeal, but the learned District Judge did not find any justification to interfere with the execution of the decree. Consequently, the appeal failed. The respondents then invoked the revisional jurisdiction of the High Court; their revision petition was accepted and the orders of the two Courts were set aside. The reasons which weighed with the High Court are:‑‑ "...As no stay order was issued during the pendency of the revision petition but before the first appellate Court stay order was issued, therefore, the respondent‑plaintiff was to file an application within a period of three years as provided under Article 181 of the Limitation Act from the date when the appeal of the petitioner‑defendant was dismissed by the learned District Judge, Mansehra, on 19‑10‑1981. The record shows that the execution application. was filed in the Court of the learned Civil Judge on 5‑1‑1987 which is beyond the period of limitation of 3 years and is time‑barred."

3. Leave to appeal was granted to examine "whether the period of limitation provided by Article 181 of the Limitation Act in the circumstances of the present case would start from 18‑10‑1981, when the appeal of the respondents confirming the decree of the trial Court was dismissed, or when the revision filed by the predecessor of the respondents against the same order dated 18‑10‑1981 before the High Court was dismissed with costs vide judgment dated 18‑11‑1986 and a decree sheet was also drawn accordingly". In other words, whether the application for execution moved on 7‑1‑1987 within two months of the decision of the revision was entertainable.

4. Article 181 is a residuary Article and is attracted only when no other Article of the Limitation Act is applicable. Article 182 having been repealed by the Law Reforms Ordinance, 1972, now there is no other Article governing the period of limitation for execution of a decree of the Civil Court, except Article

181. For the facility of reference, Article 181 is reproduced below‑ 1????????????????????????????????????????????? 2????????????????????? ?????????? ?????3 Description of?????????????????????????? ??? Period of????? ???????????????? Time from which period the suit????????????????????????????????????????? Limitation?????????????????????? begins to run. ____________________________________________________________________ 181‑Application for ???????????????? ???Three years.????????????? When the right to apply accrues. which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. Evidently, according to this Article, a petition for execution of the decree has to be made within three years of the date of the accrual of right to apply but when such right arises, this Article is silent. As is evident from the language of the Article it refers to section 48 of the Code of Civil Procedure; thus both Article 181 and section 48 shall have to be read together, although as laid down by this Court in Mahoob Khan v. Hassan Khan (PLD 1990 SC 778) "the two provisions are independent and parallel provisions with different scopes and objects". Section 48, however, prescribes the outer limit of time, after the expiry whereof fresh application for execution of the decree cannot be entertained. Under this section the date of the decree sought to be executed, is starting point of limitation. But the question requiring determination in this case is, whether the period of limitation would start from the date of decree of the Appellate Court, or the one passed by the High Court in revision.

5. It may be recalled that, according to the High Court, the time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the. reason which influenced the decision of the learned Single Judge in synchronizing the accruel of right to apply within the meaning of Article 181, with the date of the decree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stayed the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain its identity and was capable of execution. Quite advantageously, reference here, may be made to Order 41, rule 5, C.P.C., which provides that mere riling of an appeal does not operate as a stay of the decree appealed from. The Appellate Court, is, however, empowered to order the stay of the execution of such decree. Seemingly, the object of this rule is that the decree‑holder is not deprived of the relief to which he has been found entitled by the Court, and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified.

6. This rule finds support from the judgment of the Full Bench of the High Court of Bengal, rendered way back in the year 1871 in Ram Churn Bysak and another v. Luckhee Kant Barnick and others (16 SWR 1). In that case the decree of the Court of first instance was affirmed in appeal by the High Court. The period of limitation prescribed for execution of the decree of the Court of first instance was different from the one fixed for that of the Appellate Court. In case of execution of the decree of the Court of first instance, the execution petition was barred by time. The issue before the Full Bench was that out of the two decrees which was capable of execution. The Court observed: "??.. whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal was preferred, it is in either case the final decree in the cause, and as such, the only decree which is capable of being enforced by execution after it is once pronounced." This judgment fell for consideration before the Judicial Committee in Kristo Kinkur Roy and another v. Rajah Burrodacaunt Roy and another (14 Morre's IA. 465) and the observations appearing therein support the said proposition. On an exhaustive review of the case law, including these judgments, Kaikaus J. in his lucid judgment in FA. Khan v. Government of Pakistan (PLD 1964 SC 520) held: "???once an .appeal is filed the matter becomes subjudice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order........? In Lala Brij Na3rain v. Kunwar Tejbal Bikram Bahadur (37 IA.70) the Privy Council has taka,n the view that the trial Court ceases to have the jurisdiction to amend decree, when it has been affirmed by the Appellate Court. This would also strengthen the rule that after affirmation of the decree of the trial Court, the decree in existence is only that of the Appellate Court. This view has generally been followed in the sub‑continent. Reference in this connection may also be made to: (i) Saeed Ahmad v. Messrs Indo Enamel Works Limited, Lahore (PLD 1954 Lahore 4900); and (ii) Harilal Dalsukhram Saheba v. Mulchand Asharam (AIR 1930, Bombay 225). 6‑A. During the course of hearing of this appeal, our attention has been drawn to Joydeb Agarwala v. Baitulmal Karakhana Ltd. (PLD 1965 SC 37). That appeal before this Court, arose out of a suit for specific performance of a contract for sale of land, which was decreed by the trial Court on 3‑11‑1951, first appeal against this decree was dismissed by the High Court on 6‑2‑1958. Subsequently, a part of the land was acquired by the Government and compensation assessed therefore. On 1st May, 1959, the decree‑holder applied to the trial Court for amendment of the decree, for the purposes of "getting a kabala in respect of the compensation money". The amendment was allowed by the trial Court and a direction given to the defendant to execute the kabala regarding award of moody as compensation: The amendment was challenged by the defendant in appeal before the High Court, which was rejected as incompetent. The matter then came up before this Court, and the contention raised was that the decree having been affirmed by the High Court, no jurisdiction is vested in the trial Court to amend the same. Cornelius, J (as he then was) expressed the view that: "No modification was made in the decree by the High Court, and the argument of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal." It appears to us, we may say and say with respect, that the rule in the case of Lala Brij Narain and FA. Khan was not intended to be modified. It may also be remarked that there Are some exceptions to the rule of merger, for instance, there will be no merger eon the rejection of the appeal under Order 41, rule 10 or dismissal in default under Order 41, rule 17 (see Balakanat v. Mst. Munni Dail (AIR 1914 PC 65) or when appeal is withdrawn or abates. These instances are pointer to the situation when the appeal is not disposed of on merits. Further the merger is for a limited purpose of computation of period of limitation and execution of the decree. Another issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the revisional Court modifying or affirming the decree of the lower Court furnishes a starting point of limitation under Article 181.

7. The distinction between the remedy by way of appeal and revision is not unknown. The appeal is the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision is discretionary and the revisional Court has to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case may be, the decree of the lower Court is put in jeopardy, Indeed the correction of error in the proceedings of the Court below, is common characteristic of both the remedies. The concept of acceptance of appeal is that the lower Court has failed to pass the decree which should have been passed. The same object is achieved when a revision from the decree of the lower Court is accepted. Thus in a way revisional jurisdiction partakes of appellate jurisdiction. A case on this point is the one decided by a Full Bench of Madras High Court in Chappan v. Moidin Kutti (ILR 1899 Madras 68) where Subramania, J expressed the view that appellate jurisdiction includes revisional powers. Again in Nagendra Nath Dey and others v. Suresh Chandra Dey and others (59 IA. 283), the Judicial Committee regarded an application for revision as an appeal in ordinary acceptance of the term. That was a matter arising out of an execution petition, which was opposed by the judgment-?debtor, as barred by Article 182 of the Limitation Act. In this regard, the precise observations of their Lordships of the Judicial Committee are: "???..There is no definition of appeal in the Code, of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent." Similar was the opinion of a Division Bench of the erstwhile Dacca High Court in Mymensingh Co‑operative Town Bank Ltd. v. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on the authority of some precedents from Calcutta High Court, in which it was laid down that under Article 182, the limitation ran from the date of the order in revision, maintained that for the purposes of execution of a decree, the appeal included a revision.

8. Earlier, the controversy, whether in an execution matter, for the purposes of computation of period of limitation Article 182 (2) applied to revision petition as well or only to appeal was debated before a Full Bench of Madras High Court in P.P.P. Chidambara Nadar v. C.P.A. Rama Nadar and others (AIR 1937 Madras 385) and the Court after referring to the Judicial Committee's opinion in Nagendra Nath Dey's case, did not find any essential difference between the remedy by way of appeal and by way of revision. The difference between an appeal and revision qua the rule of merger was also examined by the Supreme Court of ‑India in Shankar Ramchandra Abhyankar v. Krishnaji Dattatrava Bapat (A I R 1970 SC 1) and it was laid down:‑‑ "Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute, basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal."

9. These judicial announcements leave no room for doubt that for the purpose of execution the. rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as executability of a final decree is concerned, does it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the first time by the revisional Court, but regarded as incapable of execution if its decree is that of the affirmation of the decree of the lower Court, and moreso when Article 181, unlike Article 182, which has disappeared from the Statute Book, does not refer either to decree of the Appellate Court or revisional Court but anchors the commencement of period of limitation on the accruel of right to apply and such right legitimately arises when revision against the decision of the lower Court is, one way or other, disposed of.

10. It will be material to bear in mind, that a decree in a pre‑emption suit is of a peculiar nature. Under Order 20, Rule 14, C.P.C., the title of the property accrues to the decree‑holder on payment in the Court of purchase money together with costs, if any. It has not been controverted before us that the requirements of Rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal. For all the reasons, the appeal is accepted, but as there is no reported judgment of this Court on the issue involved in this appeal, the parties are left to bear their own costs. A.A./A‑898/S????????????????????????????????????????????????????????????? ?????????? Appeal accepted.