CHANDI PRASAD AND ORS. versus JAGDISH PRASAD AND ORS.

Citation: [2004] SUPP. 4 S.C.R. 942 · Decided: 01-10-2004 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Dismissed
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Judgment (excerpt)

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CHANDI PRASAD AND ORS. 
v. 
JAGDISH PRASAD AND. ORS. 
OCTOBER I, 2004 
[N .. SANTOSH HEGDE, S.B. SINHA AND 
TARUN CHATTERJEE, JJ.] 
Limitation Act, 1963 I Code of Civil Procedure, 1908- Article 1361 
Section 2(2)-Decree-Date of enforceability for execution-Within meaning 
of Article 136-Held: Decree i~ enforceable irrespective of the fact of its 
being original or appellate-Once decree is sought to be enforced, the date 
of the decree or subsequent order would be considered to be starting point 
of /imitation. 
Doctrine: 
Doctrine of Merger- Meaning and applicability of-When. appellate 
Court passes a decree, decree of trial Court merges with decree of appellate 
Court and decree of appellate Court supersedes as the decree of trial Court_: 
The doctrine does not make any distinction between orders of reversal, 
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modification or confirmation-The doctrine does not apply when appeal is 
dismissed on the ground of delay and in case of summary dismissal of Special 
Leave Petition-However it applies when Special Leave Petition is disposed 
of by speaking order-Constitution of India, 1950-Article 136. 
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Words and Phrases: 
"Decree"-Meaning of in the context of Code of Civil Procedure, 1908. 
Partition suit by respondent against appellant was decreed by trial 
Court on 7.5.1968. Respondent-decree holder filed execution case. During 
pendency of the execution case appellant-judgment debtor preferred 
first appeal which was dismissed. His second appeal was allowed by 
High Court and the case was remitted to First Appellate Court for 
reconsideration. Execution petition was dismissed in view of order in 
second appeal having been passed in favour of the judgment debtor. 
First Appellate Court on reconsideration of the appeal dismissed the 
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appeal and decreed the suit on 4.1.1974. Second appeal, against the 
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CHANDI PRASAD v. JAGDISH PRASAD 
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order and decree dated 4.1.1974 was dismissed by High Court. Pursuant 
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thereto a formal decree was drawn on 30.10.1986. Application for 
execution of decree was dismissed by Executing Court as barred by 
limitation. In appeal against the same, execution application was held 
not barred by limitation. Writ Petition against the order was dismissed. 
In appeal Division Bench of this Court doubting correctness of 
judgment in Ratan Singh v. Vijay Singh and Ors., [2001) l SCC 469 
passed by Division Bench, referred the matter to larger Bench. 
Appellant-judgment debtor contended that in absence of any order 
of stay, the date of decree of trial Court/First Appellate Court would be 
the· enforceable date for the purpose of Article 136 of Limitation Act, 
1963; that by amending Article 182 of Limitation Act, 1908 by reason 
of Article 136 of 1963 Act, Parliament intended to provide that the 
decree of First Appellate Court would be the starting period of limitation 
and that Second Appeal being entertainable only on limited ground, 
doctrine of merger will have no application in relation thereto. 
Dismissing the appeal, the Court 
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HELD : 1. The doctrine of merger is based on the principles of 
propriety in the hierarchy of justice delivery system. The doctrine of 
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merger does not make a distinction between an order of reversal, 
modification or an order of confirmation passed by the appellate 
authority. The said doctrine postulates that there cannot be more than 
one operative decree governing the same subject matter at a given point 
of time. [949-G-H; 950-A-B] 
2. Where a statutory appeal is provided for, subject, of course to 
the restrictions which may be imposed, it is a continuation of suit. When 
a higher forum entertains an appeal and passes an order on merit doctrine 
of merger applies. (947-G-H; 948-A-B] 
UJ.S. Chopra v. State of Bombay, AIR (1955) SC 633, referred to. 
3. When an appellate Court passes a decree, the decree of the trial 
court merges with the decree of the Appellate Court and even if and 
subject to any modification that may be made in the appellate decree, 
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the decree of the Appellate Cciurt supersedes the decree of the trial 
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. 
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Court. However, when an appeal is dismissed on the ground that delay 
in filing the same is not condoned, the doctrine of merger shall not 
apply. [950-B-C; 951-G-H] 
Raja Mechanical Company Pvt. Ltd. v. Commissioner of Central Excise, 
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ILR (2002) 1 Del. 33, relied on. 
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Ratansingh v. Vijay Singh and Ors., (2001] 1 ~CC
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