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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2021 PRESENT THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA W.P. NO.14548/2020 (GM-CON) BETWEEN: 1. M/S CONFIDENT GROUP
CONFIDENT PROJECTS (I) LIMITED
NO.75, ABOVE IDEA SHOW ROOM
KORAMANGALA INDUSTRIAL AREA
5TH BLOCK, KORAMANGALA
BENGALURU - 560 095
REPRESENTED BY ITS AUTHORIZED
SIGNATORY, SRI. JOJU KOCHAPPAN. 2. DR. ROY C.J
AGED ABOUT 51 YEARS
S/O SRI. C.V. JOSEPH
CHAIRMAN AND MANAGING
DIRECTOR, M/S CONFIDENT
GROUP, CONFIDENT PROJECTS
(I) LIMITED, NO.75, ABOVE IDEA
SHOW ROOM, KORAMANGALA
INDUSTRIAL AREA, 5TH BLOCK
KORAMANGALA
BENGALURU - 560 095
REPRESENTED BY HIS P.A. HOLDER
SRI. JOJU KOCHAPPAN
AGED ABOUT 49 YEARS
S/O SRI. M.T. KOCHAPPAN
R/AT 81/55, 4TH B CROSS
EJIPURA MAIN ROAD
VIVEKNAGAR POST
BANGALORE - 560 047. R
2 3. SRI. JAYANTH C
AGED ABOUT 43 YEARS
S/O LATE SRI. M.C. PADMANABAN
GENERAL MANAGER MARKETING
CONFIDENT PROJECTS (I) LIMITED
NO.75, ABOVE IDEA SHOW ROOM
KORAMANGALA INDUSTRIAL AREA
5TH BLOCK, KORAMANGALA
BENGALURU - 560 095. ...PETITIONERS (BY SRI. VIVEK HOLLA, ADVOCATE FOR M/S HOLLA & HOLLA) AND: 1. MR. AKHIL C
AGED ABOUT 35 YEARS
S/O MR. R. CHANDRASHEKARAN
CONSULTANT SOFTWARE ENGINEER
NO.E/3, 558 (937), IST FLOOR
6TH MAIN, AKIL NIVAS, HANAVUR
LAYOUT, NAGASANDRA POST
BENGALURU - 560 073. 2. SMT. LINY ROY
AGED ABOUT 44 YEARS
W/O ROY CJ
DIRECTOR
M/S CONFIDENT GROUP
CONFIDENT PROJECTS (I) LIMITED
NO.75, ABOVE IDEA SHOW ROOM
KORAMANGALA INDUSTRIAL AREA
5TH BLOCK, KORAMANGALA
BENGALURU - 560 095. 3. SRI. SHARIFF
MAJOR
FATHER'S NAME NOT KNOWN
TO PETITIONER
CEO, M/S CONFIDENT GROUP
CONFIDENT PROJECTS (I) LIMITED
NO.75, ABOVE IDEA SHOW ROOM
KORAMANGALA INDUSTRIAL AREA
5TH BLOCK, KORAMANGALA
BENGALURU - 560 095. …RESPONDENTS (BY SRI. CHANDRASHEKHARAN PILLAI R, ADVOCATE FOR R-1; R-2 & R-3 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.11.2020 PASSED BY THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) IN THE REVISION PETITION NO.39/2020 ANNEXURE-V. THIS PETITION HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY ARAVIND KUMAR J, MADE THE FOLLOWING: ORDER
Petitioners who have been arrayed as judgment debtors in Execution Application No.48/2020 have challenged the order dated 09.11.2020 passed by the Karnataka State Consumer Disputes Resolution Redressal Commission, Bengaluru (Principal Bench) (hereinafter referred to as 'State Commission') passed in Revision Petition No.39/2020 (Annexure-V) whereunder revision petition filed by the writ petitioners calling in question order dated 23.10.2020 passed by the Bangaluru Rural and Urban I Additional District Consumer Disputes Redressal Commission (hereinafter
4 referred to as 'the District Commission') in Execution Application No.48/2020 (Annexure-R) came to be rejected and objections raised by the judgment debtors with regard to maintainability of the execution petition was not accepted.
Parties are referred to as per their rank in the execution proceedings. BRIEF BACKGROUND OF THE CASE:
A complaint came to be filed by the decree holder (first respondent in this writ petition) against judgment debtors viz., writ petitioners herein, under Section 12 of the Consumer Protection Act, 1986 (for short 'Act 1986') before the District Commission in complaint No.373/2019 alleging there was deficiency of services on the part of judgment debtors in not providing water supply to the sites, electricity connection, garden, water tank etc. and other facilities and sought for compensation and direction to the petitioners to provide correct measurement of the site sold in his favour and consequently, to refund the
5 amount collected insofar as it relates to the shortage of the area sold in favour of decree holder together with interest. Judgment debtors were placed exparte in the aforesaid proceedings on the ground of version having not been filed within the prescribed period. Hence, judgment debtors had filed an application along with their version seeking for condonation of delay, which came to be rejected on 28.05.2019 and the application filed to set aside the order placing the judgment debtors exparte, also came to be rejected by order dated 05.07.2019. On the basis of the evidence adduced by the decree holder, District Commission by order dated 23.10.2019 - Annexure-J (hereinafter referred to as 'original order') allowed the complaint and granted the following reliefs: "1. XXXX 2. OPs are jointly and severally hereby directed to pay a sum of Rs.5,000/- per month from the date of sale deed till the date of filing of the complaint as compensation for not providing the water supply connection to each site, garden water tank, borewell, swimming pool, walking track, sewage. STP, Children park, club as promised.
6 3. OPs are hereby further directed to provide the above facilities within six months from this date, failing which to pay a sum of Rs.10,000/- per month as compensation till providing the said facilities from the date of complaint to the complainant. 4. Further OPs are hereby directed to provide the correct dimension CD of the site No.157 sold in favour of the complainant within 30 days and in case if the measurement is short of the one mentioned and sold in the sale deed, in favour of the complainant, OPs are directed to compensate him by paying Rs.1,000/- per sq. feet in respect of the short measurement. 5. Further OPs are directed to pay Rs.50,000/- towards damages and Rs.10,000/- towards cost of the litigation and other charges."
Being aggrieved by the aforesaid original order passed by the District Commission, judgment debtors filed an appeal under Section 15 of the Act, 1986 in Appeal No1582/2019. State Commission by order dated 24.02.2020 - Annexure-M (hereinafter referred to as 'Appellate Order') disposed of the appeal as under: "The appeal is disposed-off. No costs. The amount in deposit shall be transmitted to the District Forum and the District Forum is directed to pay the
7 amount of 100 Sq.Ft to the respondent/complainant out of the deposited amount and after paying the amount, if any amount is remained, the same may be paid to the appellant/Opposite Party." This order having attained finality, decree holder filed an Execution Application No.48/2020 (Annexure-N) whereunder decree holder sought for payment of Rs.8,12,254/- by the judgment debtors. On notice being issued, judgment debtors appeared and filed their objections contending interalia that execution petition was not maintainable on the ground that order of the District Commission had stood merged with the order of State Commission and as such, prayer sought for in the execution proceedings cannot be granted and there is no such order of the District Commission, which is executable against decree holder.
The District Commission by order dated 23.10.2020 (Annexure-R) over-ruled the objections raised by the judgment debtors. Being aggrieved by the order dated 24.02.2020 (Annexure-M), judgment debtors filed a review petition before the State Commission in Review Petition
8 No.16/2020 and said review petition came to be dismissed by order dated 15.10.2020 (Annexure-T). Further attempt was made by the judgment debtors to challenge the said order dated 23.10.2020 (Annexure-R) by filing Revision Petition No.39/2020 (Annexure-U). The said challenge did not yield any fruitful result and Revision Petition No.39/2020 came to be dismissed by order dated 09.11.2020 (Annexure-V). Hence, this writ petition.
We have heard the arguments of Sri Vivek Holla, learned Advocate appearing for petitioners- judgment debtors and Sri Chandrashekharan Pillai, learned Advocate appearing for respondent - decree holder.
It is contended by Sri Vivek Holla, learned Advocate appearing for petitioners that Original order dated 23.10.2019 passed by the District Commission had got merged with the appellate order dated 24.02.2020 passed by the State Commission and by relying upon the principles of 'Doctrine of Merger', he
9 would draw the attention of the court to the operative portion of the order dated 24.02.2020 passed by State Commission, which deals specifically with only one of the many reliefs granted by the District Commission and as such, he contends that it is deemed that the appellate authority namely, State Commission had impliedly rejected all other reliefs granted by the District Commission. He would also contend, as a corollary to his submission, that there remained no order of the District Commission for being executed on account of appellate authority namely, State Commission having passed an order on 24.02.2020. Hence, execution petition could not have been filed to enforce the Original order dated 23.10.2019 which was not in existence and could not have been made a foundation for initiating execution proceedings. Hence, he prays for quashing of the impugned order. In support of his submission, he has relied upon the following judgments: 1. (2000) 6 SCC 359 KUNHAYAMMED AND OTHERS Vs. STATE OF KERALA AND ANOTHER
10 2. (2019) 6 SCC 424 KARNATAKA HOUSING BOARD Vs. K.A. NAGAMANI 3. SLP No.5793/2020, DATED 26.10.2020: SHASHIKANT RAGHUNATH PATIL Vs. PUTUBAI NARSINH NAIK (SINCE DECEASED) THROUGH HER LEGAL HEIRS 4. 1958 SCR 595 : AIR 1958 SC 86: STATE OF U.P Vs. MOHAMMAD NOOH 5. (1964) 5 SCR 64: AIR 1964 SC 477: SYED YAKOOB Vs. K.S. RADHAKRISHNAN AND OTHERS
Per contra, Sri Chandrashekaran Pillai, learned Advocate appearing for respondent No.1 - decree holder has contended that present writ petition is not maintainable. In support of his submission, he has relied upon the judgment of the Hon'ble Apex Court in CICILY KALLARACKAL v. VEHICLE FACTORY reported in (2012)8 SCC 524. He would contend that merely because the order of appellate authority is silent about other reliefs granted by the District Commission, it can neither be assumed nor can it be presumed that reliefs granted by the District Commission had stood eclipsed or rejected. Elaborating his submissions, he contends that only paragraph 4 of
11 the Original order dated 23.10.2019 passed by the District Commission had stood merged with the appellate order dated 24.02.2020 passed by the State Commission saving all other reliefs, which came to be granted by the District Commission. He would also rely upon the judgment of Hon'ble Apex Court rendered in the matter of MEHRA BAL CHIKITSALAYA EVAM NAVJAT SHISHU I.C.U. THROUGH R.K. MEHRA & ANR. vs MANOJ UPADHYAY (SLP(C) No.4127/2021 dated 12.03.2021) in support of his submission.
To a pointed question posed by the court to Mr.Vivek Holla as to how Revision Petition No.39/2020 filed against the order dated 23.10.2020 was maintainable before the State Commission, he has attempted to take umbrage under Section 14(1)(b) of the Consumer Protection Act, 2019 (for short '2019 Act') which has come into force with effect from 09.08.2019 and he also admits that said provision is analogous or in pari materia with Section 17(1)(b) of The Consumer Protection Act, 1986 (for short "Act, 1986").
Having bestowed our careful and anxious consideration to the rival contentions raised at the Bar and on perusal of the case papers, we are of the considered view that following points would arise for our consideration:
(1) Whether the Revision Petition No.39/2020 (Annexure-U) filed on 04.11.2020 by the petitioners is maintainable under Section 47(1)(b) of the Act, 2019? and if not, whether order dated 09.11.2020 (Annexure-V) can be sustained?
(2) Whether the order dated 23.10.2020 passed in Execution Application No.48/2020 is liable to be set aside on the ground of non- maintainability of Execution Petition No.48/2020? OR
Whether order dated 23.10.2019 (Annexure-J) had stood merged with the order dated 24.02.2020 passed by the State Commission in Appeal No.1582/2019 and as such order dated 23.10.2019 was not executable?
13 RE: POINT NO.(1): 10. State Commission has been invested with four kinds of jurisdiction - original jurisdiction, appellate jurisdiction, revisional jurisdiction and review jurisdiction. It is well settled proposition of law that revisional jurisdiction like the appellate jurisdiction, is a creature of a statute and unless the statute expressly confers a right to file a revision, party cannot maintain a revision petition in the absence of such right created under the statute. In this background, it will have to be examined as to whether the State Commission had any jurisdiction at all to entertain the Revision Petition No.39/2020 at the first instance before going into other aspects. As such, we are of the considered view that the provision of law which has been relied upon by the learned Advocate appearing for judgment debtors namely, Section 47(1)(b) of Act, 2019 requires to be extracted and it reads: "47. Jurisdiction of State Commission.-(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—
14 (a) to entertain-- (i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit; (ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; (iii) appeal against the orders of any District Commission within the State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity." Reading of aforesaid provision along with Section 17(1)(b) of Act, 1986 would clearly indicate they are in pari materia and there is no difference in the language expressed in these two provisions.
The phrase "consumer dispute" is expressly defined under Section 2(8) of Act, 2019 and it reads: "2. Definitions.-In this Act, unless the context otherwise requires,-
(1) to (7) xxx
(8) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;" Combined reading of Section 47(1)(b) and clause (8) of Section 2, it becomes clear that State Commission can call for records and pass orders in any consumer dispute either which is pending or has been decided, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law or had failed to exercise the jurisdiction so vested or acted illegally in exercise of its jurisdiction or where there is material irregularity. In the instant case, we are concerned with only revisional jurisdiction. The statutorily imposed limitation on exercise of revisional jurisdiction is that it could be used
16 only in respect of a consumer dispute either pending or having already been decided.
Hon'ble Apex Court in the case of KARNATAKA HOUSING BOARD vs K.A.NAGAMANI reported in (2019)6 SCC 424 has held that there is no remedy provided under Section 21 of the Act, 1986 to file a revision petition against an order passed in appeal by the State Commission in execution proceedings. It has been further held that Section 21(b) of Act, 1986 do not provide for filing a revision petition before the National Commission against the order passed by the State Commission in execution proceedings. It has been further held that National Commission committed jurisdictional error in entertaining the revision petition under Section 21(b), which provision is analogous to Section 47(1)(b) of Act 2019 or Section 17(1)(b) of Act, 1986.
While considering the issue of 'whether revision petition is maintainable against the order passed by the State Commission in an appeal arising
17 out of execution proceedings. Hon'ble Apex Court in NAGAMANI's case referred to supra, has held:
"7.3. The nature of execution proceedings is materially different from the nature of proceedings for adjudication of a consumer complaint. Execution proceedings are independent proceedings. Orders passed for enforcement of the final order in the consumer dispute, cannot be construed to be orders passed in the "consumer dispute"
Full Bench of Andhra Pradesh High Court in the matter of GUNTUPALLI RAMA SUBBAYYA vs. GUNTUPALLI RAJAMMA reported in AIR 1988 AP 226 has held that execution proceedings cannot be regarded as continuation of the suit in the sense in which appeal proceedings are deemed to be so. Full Bench of Patna High Court in the matter of MASOMAT NARMADA DEVI AND ANR. VS RAM NANDAN SINGH AND ORS. Reported in AIR 1987 PATNA 33 has taken a similar view. Hon'ble Apex Court in NAGAMANI's case supra has affirmed the view taken by Full Bench of Andhra Pradesh and Patna High Court and has observed as under:
"7.7. We affirm the view taken by the Full Bench of the Andhra Pradesh High Court and the Patna High Court. Execution
18 proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Execution proceedings are separate and independent proceedings for execution of the decree. The merits of the claim or dispute cannot be considered during execution proceedings. They are independent proceedings initiated by the decree-holder to enforce the decree passed in the substantive dispute." (Emphasis supplied by us)
The expression 'consumer dispute' as could be discernible from its definition found in Section 2(8), commenced in the instant case with the filing of the complaint under Section 12 of Act, 1986 on 14.02.2019 by the decree holder against judgment debtor before the District Consumer Forum and said complaint matured into a dispute with the judgment debtor denying the allegations and ultimately it resulted in passing of the original order dated 23.10.2019 - Annexure-J by the District Consumer Forum. This order came to be challenged by the judgment debtors in an appeal before the State Commission which resulted in passing of an order on 24.02.2020 by the State Commission. Said order of State Commission has become final as it has
19 remained unchallenged till date.
Appeal is a continuation of original proceedings but revision is not and there cannot be any dispute to this position of law. The order dated 23.10.2019 passed by the District Consumer Forum got merged with the order of the State Commission dated 24.02.2020. In other words, consumer dispute stood finally adjudicated in terms of the District Commission order dated 23.10.2019 which got merged with the order of State Commission dated 24.02.2020. The decree holder filed Execution Case No.48/2020 (Annexure-N) contending that judgment debtor is liable to pay a sum of Rs.8,12,254/-. It was also contended only paragraph No.4 of the order of District Consumer Forum dated 23.10.2019 had been modified by appellate authority. The judgment debtor contended that execution petition is not maintainable on the ground that order of District Consumer Forum dated 23.10.2019 had merged with the order of State Commission dated 24.02.2020 and an order came to be passed regarding maintainability of execution petition on 23.10.2020 (Annexure-R) holding it is maintainable.
20 Against said order, Revision Petition No.39/2020 was preferred by judgment debtor and same came to be dismissed on 09.11.2020 (Annexure-V).
Though none of the Advocates who have appeared in the instant case have raised the issue regarding maintainability of revision petition before State Commission, we have examined the said issue from the angle as to whether revision could have been filed challenging an order passed by the District Commission in an enforcement proceedings namely, execution proceedings. The word or phrase used in Section 47(1)(a)(iii) "Order" would not include the orders passed in the execution proceedings. If an interpretation is sought to be given that orders referred to in the said section would take within its sweep even the orders passed in the execution proceedings, then, such an interpretation would render Section 73 of the new Act redundant. Section 73 deals with appeals against orders passed under Section 72. Section 71 confers jurisdiction on the District, State and National
21 Commission to execute its own orders in the same fashion as a decree of a civil court would be enforced.
Thus, if the expression "order" found in Section 47(1)(a)(iii) would include 'any' and 'every' order passed in execution proceedings, then such interpretation would result in creating judicial chaos, since on an overall reading of the New Act, it becomes clear that execution proceedings are meant to be independent of the "determination of the consumer dispute". Only on the determination of the consumer dispute becoming final as indicated in Section 68 of the Act, 2019, does the execution proceedings begin. Not every order passed in the execution is appealable. Whereas, every order passed by the District Commission is appealable.
In the analysis of the aforesaid discussion, following conclusions can be arrived at:
(1) Execution proceedings under the Act is altogether independent and separate from determination and adjudication of the consumer dispute. In other words, it is
22 not a continuation of the original proceedings like that of an appellate proceedings. (2) "Orders" passed in execution proceedings cannot be treated on par with the order passed at the adjudication stage. Since there is a separate appeal mechanism in respect of each stage. (3) Orders passed in the execution stage are not revisable since they are not concerned with the adjudication of a "consumer dispute."
Since the order dated 23.10.2010 passed by the District Commission in Execution No.48/2020 is neither appealable nor revisable, entertainment of Revision Petition No.39/2020 (Annexure-U) by the State Commission was without jurisdiction and revision petition was not maintainable and consequently revision proceedings initiated before State Commission in Revision Petition No.39/2020 and consequential order dated 09.11.2020 (Annexure-V) are liable to be set aside. Hence, present writ petition challenging the said order is maintainable and this court in exercise of extraordinary
23 jurisdiction vested under Article 226 of the Constitution of India would be empowered to set aside an order passed by an authority without jurisdiction. Hence, contention raised by learned counsel appearing for respondent regarding maintainability of writ petition is rejected. RE: POINT NO.(2): 20. The question that would arise for our consideration is: "Whether the order dated 23.10.2020 (Annexure-R) requires interference? This would in turn raise a question as to: "Whether order dated 23.10.2019 passed by the District Consumer Forum merged with the order dated 24.02.2020 passed by the State Commission in its appellate jurisdiction?"
It would be of profitable to extract the operative portions of the order of District Consumer Forum and order of State Commission to adjudicate the said issue.
24 Original Order -District Consumer Forum (23.10.2019) Appellate Order - State Commission (24.02.2020) 1. The complaint is allowed in part with cost. 2. OPs are jointly and severally hereby directed to pay a sum of Rs.5000 per month from the date of sale deed till the date of filing of the complaint as compensation for not providing the water supply connection to each site, garden, water tank, borewell, swimming pool, walking track, sewage, STP, children park, club as promised. 3. OPs are here by further directed to provide the above facilities within six months from this date, failing which to pay a sum of Rs.10,000 per month as compensation till providing the said facilities from the date of complaint to the complainant. 4. Further, the OPs are hereby directed to provide the correct dimension CD of the site no.157 sold in favour of the complainant within 30 days and in case if the The appeal is disposed off. No costs The amount in deposit shall be transmitted to the District Forum and the District Forum is directed to pay the amount of 100 sq. ft. to the respondent/complainant out of the deposited amount and after paying the amount, if any amount is remained, the same may be paid to the appellant/Opposite party. After measurement, if there is no any deficit of 100 Sq. ft., the amount shall be paid to the appellant/Opposite party.
25 measurement is short of the one mentioned and sold in the sale deed, in favor of the complainant, OPs are directed to compensate him by paying Rs.1000 per sq. Feet in respect of short measurement. 5. Further Ops are directed to pay Rs. 50000 towards damages and Rs10000 towards cost of litigation and damages and other charges 6. OPs are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
Aforesaid operative portions of the order passed by the District Commission in its original jurisdiction and State Commission in its appellate jurisdiction, would evidently show the appellate order confines itself to only one of the reliefs granted by District Forum under the order dated 23.10.2019. To elaborate on this, it has been the contention of decree
26 holders that sole relief granted under the appellate order corresponds to relief No.4 of the order of District Forum and other reliefs granted by District Forum is not disturbed by State Commission. It is in this background, learned Advocate appearing for petitioner has contended that order dated 23.10.2019 (Annexure-J) passed by the District Commission has merged with the order dated 24.02.2020 (Annexure-M) passed by the State Commission and as such, order of the District Commission has no independent legs to stand. Per contra, learned Advocate appearing for decree holder has contended that only relief No.4 in the original order merged into the appellate order and the remaining reliefs granted by District Forum would continue to operate since they are not expressly interfered by the State Commission.
However, there seems to be no disagreement between the learned Advocates appearing for the parties that "Doctrine of merger" is per-se applicable and yet point of disagreement appears to lie on the applicability of 'Doctrine of merger' to the facts on hand. Thus, it would take us to the next question as to:
27 "Whether there can be a partial merger of an order passed in original jurisdiction with the order passed by the appellate authority in the context of hierarchal orders?"
Hon'ble Apex Court in the case of KUNHAYAMMED vs STATE OF KERALA reported in (2000)6 SCC 359 has held that decision of the subordinate forum merges with the decision rendered by the superior forum. It has been further held: "44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum
28 and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme
29 Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
In COMMISSIONER OF INCOME TAX, BOMBAY vs M/S.AMRITLAL BHOGILAL & CO. reported in AIR 1958 SC 868, 'doctrine of merger' has been explained by the Hon'ble Apex Court as under: "10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the Appellate Authority is the operative decision in law. If the Appellate Authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the Appellate Authority, the original decision merges in the appellate
30 decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income Tax Officer's order granting registration to the respondent."
It is trite law that when an appeal is provided from a decision of a tribunal and appellate court, after hearing the appeal, passes an order, the order of the original court or orders passed in original jurisdiction ceases to exist and it gets merged with the order of the appellate court and although appellate court may merely confirm the order of the trial court, order that would stand for being operated would be the order of the appellate court or authority and not of the trial court or the court of original jurisdiction or court of first instance. Thus, the following principles would emerge from the above: (i) Pre-requisites for applicability of doctrine of merger is that there must be a decision of a subordinate court/forum in respect of which there exists a right of appeal/revision which is duly exercised and the superior forum before
31 whom such appeal/revision is preferred must modify, reverse and/or affirm the decision of the subordinate court/forum. (ii) The consequence of such modification, reversal and/or affirmation is that the decision of the subordinate forum would merge with the decision of the superior forum,which in turn would be operative and capable of being enforced. In other words, the appellate order would operate to the exclusion of all prior orders passed in the hierarchy of orders. (iii) The judicially recognized exceptions to the doctrine of merger would only arise when the scope of the appellate/revisional jurisdiction is not co-extensive with the original jurisdiction i.e., it is narrower than the original jurisdiction. And further, where orders in appeal/revision have been secured through fraud.
Keeping the aforesaid principles of law in mind, when facts on hand are examined, it would clearly indicate that none of the exceptions of the 'doctrine of
32 merger' has been pleaded or canvassed by the learned Advocate appearing for decree holder. On the other hand, it has been contended that merger doctrine would apply only in part. Partial merger "of judicial orders" is not a concept recognized in law nor has it been recognized as an exception to the doctrine of merger. To put it differently, even the proposition of partial merger if given effect to, it would result in continued existence of more than one enforceable order at any given point of time and thereby turning the entire concept of merger upside down. In the instant case, original order dated 23.10.2019 got merged in toto with the appellate authority order dated 24.02.2020 and thereby original order dated 23.10.2019 lost its identity altogether and the only available order which was capable of enforcement was the order passed by the State Commission on 24.02.2020.
Thus, Execution Application No.48/2020 filed for enforcement or executing the order dated 23.10.2019 was not maintainable and as such, order dated 23.10.2020
33 (Annexure-R) passed in Execution Application No.48/2020 is liable to be set aside.
Hence, it has to be necessarily held that prayer sought for in the Execution Application No.48/2020 for enforcement of the original order dated 23.10.2019 is illegal and execution proceedings as brought was not maintainable. Consequently, it has to be held that District Commission had no jurisdiction to enforce the order dated 23.10.2019 which never existed by virtue of said order having merged with the order dated 24.02.2020 passed by the State Commission.
For the reasons aforestated, we proceed to pass the following: ORDER (i) Revision Petition No.39/2020 is held to be not maintainable and consequentially proceedings flowing from it and culminating in the orders passed will automatically get terminated as they have no existence in the eye of law.
34 (ii) Order dated 23.10.2020 (Annexure-R) passed by the District Commission is quashed and consequently, Execution Application No.48/2020 filed by the decree holder before the District Commission is dismissed. (iii) However, decree holder is at liberty to enforce the order dated 24.02.2020 (Annexure-M) if so advised in the manner known to law. (iv) Costs made easy. SD/- JUDGE SD/- JUDGE *sp