LexMANOHAR S/O SHANKAR NALE AND ORS. versus JAIPALSING S/O SHIVLALSING RAJPUT AND ORS.
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A MANOHAR S/O SHANKAR NALE AND ORS. ,~ v. JAIPALSING S/O SHIVLALSING RAJPUT AND ORS. NOVEMBER 20, 2007 B [S.B. SINHA AND HARJIT SINGH BEDI, JJ.] ·- Limitation Act, 1963-Article 136-Decree-Execution of- Limitation for-Decree for possession in favour of respondents in c second appeal-Review petition thereagainst dismissed-Supreme Court staying order in revision petition and directing trial court to ascertain mesne profits-Execution petition-Challenge to, by appellants on the ground that it was time barred-Courts below holding that the petition was within limitation as stay order to the order D of High Court was operating-Sustainability of-Held: Not sustainable-SL? was filed only against review petition-Stay of operation of order in review petition was meaningless since the review petition was already dismissed-Decree passed by High Court was not a composite one-Proceeding/or computation of mesne profit was to E be instituted which did not come in the way of execution of decree- Also it cannot be said that the review petition having been dismissed, doctrine a/merger was applicable-Code of Civil Procedure, 1908- 0 20 r 12 ands. 114 r/w 0 4 7 r I. F Predecessor-in-interest of the respondents filed suit for possession y • and the same was dismissed. Appeal was also dismissed. However, the second appeal was allowed and suit for possession was decreed. Predecessor-in-interest of appellants filed review application which was dismissed. Appellant filed SLP and leave was granted. This Court stayed G the order of High Court in second appeal and directed the trial court to ascertain mesne profits to be deposited by appellants. Thereafter, appeal was dismissed being incompetent holding that no appeal was 1~ maintainable in terms of Order 47 Rule 7 CPC rejecting a review application. Meanwhile, respondent filed application for executing the H 364 MANOHAR S/O SHANKAR NALE v. JAIPALSING S/O 365 .._ SHIVLALSlNG RAJPUT decree. Appellant contended that the application was not maintainable A since the same was time barred. Executing court held that the petition was within limitation as Order of stay to the order of High Court was operating. Appellant filed writ petition. Single Judge of High Court dismissed the writ petition upholding the order of the executing court. Hence the present appeal. B Appellant contended that the Courts below acted illegally and without jurisdiction in passing the impugned judgment insofar as they failed to take into consideration that no order was passed by this Court staying execution of the proceedings or operation of the judgment and decree. c Respondents contended that High Court passed composite decree and in view of the fact that this Court directed computation of mesne ., profit, the execution case was not barred by limitation; and that an Order passed in such proceedings would merge with the main judgment and D decree. Allowing the appeal, the Court HELD: 1.1. The decree passed by the High Court in the Second Appeal is in two parts. The Court granted a decree for possession. Respondent was also found to be entitled to an enquiry in terms of Order E 20 Rule 12 CPC in regard to computation of mesne profit from the date . ~ of the institution of the suit, till the date of the actual delivery of possession. Therefore, it cannot be said that the decree was a composite one. The proceeding for computation of mesne profit required to be F undertaken was subject to institution of a proceeding but, by reason thereof, execution of the decree in regard to the possession ofland was not required to be awaited till the outcome. [Para 10] [371-E, F, G; 372-A] J 1.2. It cannot be said that in a case of this nature, namely where a G review petition was dismissed, the doctrine of merger will have any application whatsoever. It is one thing to say that the respondent was entitled to file an application for review in terms of section 114 read with Order 47 Rule 1 CPC, but it is another thing to say that the decree passed in favour of the respondent merge~ with the order dismissing H 366 SUPREME COURT REPORTS [2007] 12 S.C.R. A the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree. It is not the contention of the respondent that any order of stay was
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