Commissioner of Income Tax-I, vs. Agriculture Market Committee,

[2023:RJ-JP:17907] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 121/2011 Gordhan Lal S/o Shri Chhaju Ram, B/c Ahir, R/o Village Kutabpur, Tehsil Kishangarhbas, District Alwar Rajastha Died During Revision Petition Through Legal Representatives 1/1 Smt. Ramgiri @ Choti Devi W/o Late Shri Gordhan Lal Aged about 55 Years 1/2 Satveer S/o Late Shri Gordhan Lal Aged about 35 years 1/3 Satish S/o Late Shri Gordhan lal Aged about 30 Years 1/4 Ashok S/o Late Shri Gordhan Lal Aged about 28 Years (since deceased) All are R/o Village Bhudeda Tehsil & District Gurgaon (Haryana) 1/5 Kanta D/o Late Shri Gordhan Lal W/o Shri Devi Singh aged about 32 Years, R/o Village Ramsara Tehsil Abohar District Fazilaka ----Petitioner Versus 1. Ghamandi Lal S/o Shri Data Ram, 2. Smt Rama Devi, W/o Ghamandi Lal, Both are R/o Village Kutabpur Tehsil Kishangarhbas, District Alwar ----Respondents/Decree holders For Petitioner(s) : Mr. M.M. Ranjan, Sr. Adv. With Mr. Lokesh Tiwrai For Respondent(s) : Mr. V.K. Tamoliya HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 16/08/2023 This civil revision petition is directed against the order dated 11.05.2011 passed by the learned Additional District Judge No.1, Kishangarhbas, Alwar (for brevity, “the learned Executing Court”) in Execution Petition No.16/2008 whereby, an objection raised by Shri Gordhan Lal, predecessor in interest of the petitioners, the

[2023:RJ-JP:17907] (2 of 4) [CR-121/2011] defendant no.1 in the suit, in the execution application filed by the respondents, has been dismissed. The relevant facts in brief are that a suit filed by the respondents/plaintiff/decree holders (for brevity, “decree holders”) for specific performance of the contract and permanent injunction was decreed by the learned Additional District Judge, Kishangarghbas (for brevity, “the learned trial Court”) vide judgement and decree dated 07.07.1984. The Civil First Appeal No.81/1984 preferred thereagainst by four of the defendants came to be dismissed by this Court vide judgement and decree dated 25.11.2014. Thereafter, the decree holders filed the execution application no.16/2008 seeking execution of the decree dated 07.07.1984 wherein, an objection raised by the petitioners as to its maintainability being hit by the law of limitation, has been rejected by the learned Executing Court vide order dated 11.05.2011, impugned herein. Assailing the order, learned Senior Counsel for the petitioners would submit that the learned Executing Court erred in failing to appreciate that since, the application for execution of the judgement and decree dated 07.07.1984 was filed beyond the period of 12 years, it was hit by law of limitation and was not maintainable. He, therefore, prays that the revision petition be allowed, the order dated 11.05.2011 be quashed and set aside and the execution application filed by the decree holders be dismissed. Heard. Considered. Indisputably, the decree dated 07.07.1984 was assailed before this Court by way of S.B. Civil First Appeal No.81/1984 by

[2023:RJ-JP:17907] (3 of 4) [CR-121/2011] some of the defendants which came to be dismissed vide judgement dated 25.11.2014. The issue as to whether the limitation for filing execution would start from the date of original decree or decree of appellate court, is no more res-integra. Their Lordships have, in case of Chandi Prasad & Ors. vs. Jagdish Prasad & Ors.: (2004) 8 Supreme Court Cases 724, held as under:- “20. It is not disputed that all decrees, be they original or appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation. 21. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in the presence of both parties, the same would replace the judgment of the lower court and only the judgment of the High Court would be treated as final. [See U.J.S. Chopra Vs. State of Bombay, AIR 1955 SC 633] 22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues. 23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of 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. 24. It is trite that 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, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial court. When a special leave petition is dismissed summarily, doctrine

[2023:RJ-JP:17907] (4 of 4) [CR-121/2011] of merger does not apply but when an appeal is dismissed, it does. [See V.M. Salgaocar and Bros. (P) Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623].” Since, the execution application was filed within the period of limitation from the date of judgement and decree in the civil first appeal, in the backdrop of aforesaid precedential law, in the considered opinion of this Court, the learned Executing Court did not err in rejecting the objection raised by the petitioners as to maintainability of the execution application on the ground of limitation. Resultantly, this civil revision petition is dismissed. (MAHENDAR KUMAR GOYAL),J PRAGATI/11