The Supreme Court held that an appellate court judgement merges with the trial court judgement and therefore, an execution filed within 12 years from the date of appellate court judgement is within limitation.
The said judgment was passed in the matter of Shanthi vs. T.D. Vishwanathan & Ors. in Civil Appeal No. 10442 of 2011 decided on 24.10.2018.
The appellant was a tenant of the respondents. The Trial Court, the first Appellate Court and the High Court had concurrently concluded that the plaintiff is entitled to get possession of the suit property and arrears of rent. Thus, the suit was decreed against the tenant by such concurring judgments. Thereafter, an execution petition was filed in 2006 for executing the decree.
The only question raised by the appellants was that the execution petition was filed in the year 2006 and was therefore, barred by limitation inasmuch as the same was not filed within 12 years from the date of the judgment of the Trial Court, i.e., dated 14.08.1981.
The case of the appellants was that the execution petition ought to have been filed within 12 years from the date of the judgment of the Trial Court without waiting for the decision of the First Appellate Court or the Second Appellate Court. It was submitted that there was no interim order granted by the First Appellate Court and the Second Appellate Court.
Relying on the judgement of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724, the Supreme court observed that in terms of Article 136, Limitation Act 1963, a decree can be executed when it becomes enforceable. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, the suit is considered to be continuing. Furthermore, when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time.
In the light of the above observation the Court held that since the judgment of the Trial Court was affirmed by the First Appellate Court and was further affirmed by the Second Appellate Court, the decree passed by the High Court becomes the final and only enforceable decree in view of the doctrine of merger. Since the execution was filed within 12 years of the judgement of the High court, the bar of limitation would not be attracted.