Holding

The execution petition is barred by limitation as the decree became enforceable immediately, the decree is not composite, and the doctrine of merger does not apply.

Summary

Manohar and others appealed against a High Court order that allowed execution of a decree for possession of land, arguing that the execution petition filed on 10‑December‑2001 was barred by the 12‑year limitation period under Article 136 of the Limitation Act, 1963. The decree, passed in a second appeal, granted possession and ordered a separate enquiry for mesne profits, but the Supreme Court held that the decree was not a composite one and that the mesne‑profit proceeding did not stay execution of possession. The Court also ruled that the doctrine of merger does not apply where a review petition has been dismissed, and that the Supreme Court’s stay order in 1988 was meaningless because the review petition was already dismissed. Consequently, the decree became enforceable immediately on its passing, making the execution petition time‑barred. The appeal was allowed and the High Court’s judgment set aside with costs.

Issues considered

Whether the execution petition filed after the decree is barred by the 12‑year limitation period under Article 136 of the Limitation Act, 1963.
Whether the decree for possession and the order for mesne‑profit enquiry constitute a composite decree that would stay execution.
Whether the doctrine of merger applies to a decree when a review petition under CPC Section 114 is dismissed.
Whether the Supreme Court’s stay order of 21‑March‑1988 affects the limitation period for execution.

Legislation cited

Code of Civil Procedure, 1908s. Order 20 Rule 12, s. Order 20 Rule 7, s. Order 41, s. Order 47 Rule 1, s. Order 47 Rule 7, s. Order 6-A, s. Section 114
Limitation Act, 1963s. Article 136

Subjects

LimitationExecution of decreeDecree for possessionMesne profitsDoctrine of mergerReview petitionComposite decreeArticle 136CPC Order 20CPC Order 47Stay order

Judgment

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 oforder 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 ofmesne 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 ofCivil 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 ofappellants 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. E
Respondent was also found to be entitled to an enquiry in terms ofOrder
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
undertaken was subject to institution of a proceeding but, by reason F
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 ofsection 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 ofstay was passed in the review application. Thus, there
B was no bar in proceeding with the execution case. The decree of J-

possession passed in favour of the respondent became enforceable
immediately on its passing. An execution petition therefor was required
to be filed within a period of 12 years.
[Paras 11 and 13) (371-A, B, C, D; 372-B, CJ
c 1.3. The order of purported stay passed by this Court in terms of
its Order dated 21.3.1988 is also of no assistance to the plaintiff-decree
holder. The Special Leave Petition was filed only against the Order
dated 1.7.1985 refusing to review its judgment and decree dated
D 2.9.1983. The stay ofoperation of the Order dated 1.7.1985 for all intent
and purport was meaningless as the review petition already stood
dismissed. Further, the direction of this Court that computation of mesne
profit would go on and the same would be deposited by the appellant is
of no consequence inasmuch as by reason thereof neither proceeding
E was stayed nor the operation of the judgment and decree had been
stayed. In fact, it was an order passed in favour of the decree holder.
The said direction did not come in his way to execute the decree for
possession. Therefore, there is no reason to hold that the said order ,.
could be construed to be one passed in favour of the decree holder-
F respondent as was contended or otherwise. The Executing Court as well
as the High Court committed a manifest error in opining that the
Execution Petition was not barred by limitation.
[Paras 15, 16, 17 and 18) (373-G; 374-A, B, C, DJ
Rekha Mukherjee v.Ashis Kumar Das and Ors., (2005) 3 SCC 427,
G distinguished.

WB. Essential Commodities Supply Corpn. v. Swadesh Agro
Farming and Storage Pvt. Ltd, (1999) 8 SCC 315; HashamAbbas Sayyad
v. Usman Abbas Sayyad and Ors., (2007] 2 SCC 355 and Raghunath Rai
H Bareja and Anr. v. Punjab National Bank and Ors., (2006) 13 SCALE
MANOHAR S/O SHANKAR NALE v. JAIPALSING S/O 367
-- SHIVLALSING RAJPUT [SINHA, J.]
511, referred to. A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5323 of
2207.
From the Judgment and final Order dated 26.7.2005 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in W.P. No. 5927 B
of2004.
Satyajit A. Desai, Anangha S. Desai, Amol N. Suryawanshi and
Venkateswara Rao Anumolu for the Appellants.
Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the C
Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. l. Leave granted.
D
2. Applicability of the provisions of Article 136 as contained in the
Schedule appended to the Limitation Act, 1963 is in question in this appeal
which arises out of a judgment and order dated 26. 7.2005 passed by a
learned Single Judge of the Bombay High Court, Nagpur Bench at Nagpur.
in Writ Petition No. 5927 of2004 affirming an order dated 26.10.2004 E
passed by the Civil Judge, Junior Division in Regular Darkhast No. 32 of
2001.
3. Shivlalsing, predecessor-in-interest ofth1.: respondents filed a suit
in the Court of Civil Judge, Junior Division, Malkapur. The said suit was
marked as Regular Civil Suit No. 250/1965. It was dismissed on F
24.12.1968. An appeal preferred thereagainst was also dismissed.
However, a second appeal filed by the plaintiff-decree holder was allowed
upon setting aside the judgment and decree of the Courts' below, the
operative portion whereof reads as under :
G
"For the reasons stated in the accompanying judgment, the court
allows the appeal, sets aside the decrees of both the courts below
dismissing the suit and instead. The Court orders that the plaintiffs
suit for possession of32 gunthas area, as shown in the copy of
the map Exh. 30, from out of Survey No. 59/l area 3 acres 12 H
368 SUPREME COURT REPORTS [2007] 12 S.C.R.

A gunthas, shall stand decreed with costs throughout. The appellant-
plaintiff is also entitled to an enquiry under the provisions of the
Order XX Rule 12(1) C.P .C. for mesne profit in respect of the
suit land from the date of the suit till the actual delivery of
. "
possession.
B
4. An application for review thereof was filed by the predecessor-
in-interest of the appellants herein. The said review petition was dismissed
by an Order dated 12.8.1985. Appellants preferred a special leave
petition thereagainst before this Court and leave having been granted, the
C matter was marked as Civil Appeal No. 1836 of 1986.
5. By an Order dated 21.3.1988, this Court passed an order of stay
in the following terms :
"The Application for Stay above mentioned being called on for
D hearing before this Court on the 21st day of March, 1988 upon
hearing Counsel for the parties herein. This Court Doth Order that
the order of this Court dated the 8th May, 1986 passed in Civil
Miscellaneous Petition No. 10447 of 1986 be and is hereby
confirmed and that pending the hearing and final disposal by this
E
Court of the appeal above mentioned, the operation of the Order
dated the 1stJuly, 1985 of the High Court ofJudicature at Bombay
(Nagpur Bench) Nagpur in Miscellaneous Civil Application No.
134 of 1984 in Second Appeal No. 158 of 1972 be and is hereby
stayed and the Civil Judge, Junior Division, Malkapur, Maharashtra ' .
F
be and is hereby directed to ascertain the amount of mesne profits
which shall be deposited by the appellant herein."
6. The said appeal, however, came to be dismissed as being
incompetent by this Court opining that no appeal lay in terms of Order
47 Rule 7 of the Code of Civil Procedure rejecting a review application.
G
7. Admittedly, an application for executing the said decree was filed
by the decree holder only on 10.12.2001. Appellant, having been noticed
in the said execution proceeding, inter alia, raised a contention about
maintainability thereof on the premise that the same was barred by
H limitation. The Executing Court by an Order dated 26.10.2004 rejected
MANO HAR S/O SHANKAR NALE v. JAIP ALSING S/O 369
~.
SHIVLALSING RAJPUT [SINHA, J.]
the said contention holding : A
"It is only a disputed point as to whether the decree was stayed
by Hon'ble Apex Court. Ifit was stayed, the Dark.hast would be
within limitation and if not, it would not be Record of original
darkhast is called for copy of writ in respect of stay is on the said
_, B
record, from Hon'ble Apex Court stayed the effect and operation
of the order passed by Hon'ble High Court while deciding review
petition against the order passed in Second Appeal. It is submitted
by Shri Tarkase, learned counsel for the J.D. that the original
decree was not stayed. It is submitted by Shri Rawant, learned
counsel for the D.H. that the said order had the effect of staying
c
the original decree as it merged into the orders passed b-y Hon'ble
High Court. I am in agreement with this submission ofShri Rawant.
Shri Tarkase, learned counsel for the J.D. placed his reliance on
the decision in the case of Ram Ratan Choudhary v. Upendra
D
Chondru Das, A.LR. (1923) Col. 288. But, there was to stay is
that case (sic) and hence the ratio is not applicable to the facts of
the present case. Hence, there is no substance in the submission
that the execution is not within limitation. Hence, I hold that the
execution is well within limitation as an order of stay to the order
E
ofHon'ble High Court was operating."
8. As noticed hereinbefore, a learned Single Judge of the Bombay
,., High Court, Nagpur Bench, Nagpur by reason of the impugned judgment
dated 26.7.2005 dismissed the writ petition preferred by the appellant
thereagainst stating; F
'The learned trial court while rejecting the application has found
that the judgment and decree dated 02/09/1983 had merged into
the order of this Court while rejecting review dated 01/07/1985.
He, therefore, submits that the effect of the stay granted by the
G
Apex Court was to stay the execution of the decree and as such
the execution of the decree cannot be proceeded till vacation of
the stay by the Apex Court. The execution of proceedings have
been filed within a period of 12 days from the date on which the
Apex Court had vacated the stay.
H
370 SUPREME COURT REPORTS [2007] 12 S.C.R.

A In that view of the matter, I do not find any perversity or infirmity
in the jurisdiction exercised by the learned trial court so as to
warrant any interference of this court in the extraordinary
jurisdiction under Article 227 of the Constitution oflndia. Hence
the petition is rejected."
B
9. Mr. Satyajit A. Desai, learned counsel appearing on behalf of the
appellant in support of the appeal would submit that the learned Courts
below acted illegally and without jurisdiction in passing the impugned
judgment insofar a<> they failed to take into consideration that no order
C having been passed by this Court staying execution of the proceedings
or operation of the judgment and decree, the impugned judgment must
be set aside being wholly unsustainable in Jaw.
Mr. Makarand D. Adkar, learned counsel appearing on behalf of
the respondents, on the other hand, would submit that a composite decree
D having been passed by the High Court and furthermore in view of the
fact that this Court in its order dated 21.3.1988 clearly directed
computation of mesne profit, the execution case was not barred by
limitation
E It was further submitted that the remedy of review being a statutory
remedy available to an aggrieved party, an Order passed in such
proceedings would merge with the main judgment and decree.
l 0. The decree passed by the High Court in the aforementioned
Second Appeal No. 158of1972 is in two parts. The Court granted a
F decree for possession In respect of an area measuring 32 gunthas, as
delineated in the map Exh. 30, out of Survey No. 59/l measuring 3 acres
12 gunthas. Respondent was also found to be entitled to an enquiry in
terms of Order 20 Rule 12 of the Code of Civil Procedure in regard to
computation of mesne profit from the date of the institution of the suit,
G till the date of the actual delivery of possession. It is therefore, not correct
to contend that the decree was a composite one. The proceeding for
computation of mesne profit required to be undertaken in terms of Order
20 Rule 12 of the Code of Civil Procedure was subject to institution of
a proceeding but, by reason thereof, the execution of the decree in regard
H
MANOHAR S/O SHANKAR NALE v. JAIPALSING S/O 371
SHIVLALSING RAJPUT [SINHA, J.]
to the possession of30 gunthas ofland was not required to be awaited A
till the outcome.
11. It is also incorrect to contend that in a case of this nature, namely
where a review petition was dismissed, the doctrine of merger will have
any application whatsoever.
B
It is one thing to say that the respondent was entitled to file an
application for review in tenns of Section 114 read with Order 47 Rule
1 of the Code of Civil Procedure, but it is another thing to say that the
decree passed in favour of the respondent merged with the order dismissing
the review application. Matter might have been different, if the review C
application had been allowed either wholly or in part in tenns whereof an
application for execution of the decree could have been filed only in tenns
of the modified decree.
It is not the contention of the respondent that any order of stay was D
passed in the review application. There was, thus, no bar in proceeding
with the execution case.
12. Keeping in view the aforenoticed factual backdrop, we may
notice the law applicable herein.
E
Article 136 of the Limitation Act reads as under:-
Description of Penod of Time from which period
-' application limitation begins to run
136 For the execution Twelve years When the decree or
of any decree order becomes F
(other than a enforceable or where the
decree granting decree or any subsequent
a mandatory order directs any payment
injunction) or of money or the delivery of
order of any any property to be made at G
civil court a certain date or at
recurring periods, when
default in making the
payment or delivery in
respect of which execution H
372 SUPREME COURT REPORTS [2007] 12 S.C.R.

A is sought, takes place:
Provided that an application
for the enforcement or
execution of a decree
granting a perpetual
B injunction shall not be
subject to any period of
limitation
13. The decree of possession passed in favour of the respondent
became enforceable immediately on its passing. An execution petition
c therefor was required to be filed within a period of 12 years.
In W.B. Essential Commodities Supply Corpn. v. Swadesh Agro
Farming & Storage Pvt. Ltd, [1999] 8 SCC 315, this Court opined;
''(l) '"A decree or order is said to be enforceable when it is
D
executable. For a decree to be executable. it must be in existence.
A decree would be deemed to come into existence immediately
on the pronouncement of the judgment. But it is a fact of which
judicial notice may be taken of that dravving up and signing of the
decree takes some time after the pronouncement of the judgment;
E the Code of Civil Procedure itself enjoins that the decree shall be
drawn up expeditiously and in any case within 15 days from the
date of the judgment. If the decree were to bear the date when it
is actually dravvn up and signed then that date will be incompatible
with the date of the judgment. This inconb'Tllity is taken care of by
F
Order 20 Rule 7 CPC which, inter alia, provides that the decree
shall bear the date and the day on which the judgment was
pronounced."
(2)"Rule 6-A enjoins that the last paragraph of the judgment
G shall state in precise ten11S the relief which has been granted by
such judgment. It has fixed the outer time-limit of 15 days from
the date of pronouncement of the judgment within which the decree
must be drawn up. In the event of the decree not so drawn Rule
1 of Order 41 CPC without filing a copy of the decree appealed
H
A
MANOHAR S/O SHANKAR NALE v. JAIPALSING S/O 373
SHIVLALSING RAJPUT [SINHA, J.]
-~ against and for that purpose the last paragraph of the judgment A
shall be treated as a decree. For the purpose of execution also,
provision is made in clause (b) of the said sub-rule which says that
so long as the decree is not drawn up, the last paragraph of the
judgment shall be deemed to be a decree. Clause (b) has thus
enabled the party interested in executing the decree before it is B
drawn up to apply for a copy of the last paragraph only, \Vithout
being required to apply for a copy of the whole of the judgment.
It further lays down that the last paragraph of the judgment shall
cease to have the effect of the decree for purposes of execution
or for any other purposes when the decree has been drawn up." c
(3) "It follows that the decree became enforceable the moment
the judgment is delivered and merely because there will be delay
in drawing up of the decree, it cannot be said that the decree is
not enforceable till it is prepared. This is so because an enforceable
D
decree in one form or the other is available to a decree-holder from
the date of the judgment till the expiry of the period of limitation
under Article 136 of the Limitation Act.""
See also Hasham Abbas Sayyad v. Usman Abbas Sayyad and
Ors., [2007] 2 SCC 355] E

14. In Raghunath Rai Bareja and Anr. v. Punjab National Bank
And Ors., (2006) 13 SCALE 511, this Court opined;
"9. Under Article 136 to the Schedule of the Limitation Act, 1963
- ' the period for applying for execution of any decree is 12 years F
from the date when the decree becomes enforceable. Since in the
present case the final decree was passed and became enforceable
on 15.1.1987, the period of limitation for filing an execution
application expired on 15.1.1999"
G
15. The order of purported stay passed by this Court in terms of its
Order dated 21.3 .1988 is also of no assistance to the plaintiff-decree
'-1
holder. The Special Leave Petition was filed only against the Order dated
1.7.1985 refusing to review its judgment and decree dated 2.9.1983. The
stay of operation of the Order dated I. 7.1985 for all intent and purport H
374 SUPREME COURT REPORTS [2007) 12 S.C.R.

A was meaningless as the review petition already stood dismissed.
16. Further direction of this Court that computation of mesne profit
would go on and the same would be deposited by the appellant is of no
consequence inasmuch as by reason thereof neither proceeding was stayed
B nor the operation of the judgment and decree had been stayed. In fact, it
was an order passed in favour of the decree holder. The said direction
did not come in his way to execute the decree for possession.
17. We, therefore, do not see any reason to hold that the said order
could be construed to be one passed in favour of the decree holder-
C respondent as was contended or otherwise.
Mr. Adkar relies upon the decision of this Court in Rekha
Mukherjee v. Ashis Kumar Das and Ors., [2005) 3 SCC 427 which
has no application in the present case.
D 18. We, therefore, are of the opinion that the Executing Court as
well as the High Com1 committed a manifest error in opining that the
Execution Petition was not barred by limitation. The appeal is allowed.
The impugned judgment is set aside with costs. Counsel fee quantified at
Rs. 5,000/-.
E
N.J. Appeal allowed.