The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 200 of 2025 Bismita Panda & Others …. Petitioners Mr. B.C. Panda, Advocate -Versus- M/s CESCO Ltd. (Now TPCODL), BBSR & Another …. Opposite Parties
Legal Reasoning
Mr. N.K. Maharana, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 21.02.2025 1. Heard Mr. Panda, learned counsel for the petitioners and Mr. Maharana, learned counsel for the opposite parties. 2. Instant petition is filed by the petitioners challenging the impugned order dated 24th September, 2024 under Annexure-1 in Execution Case No. 22 of 2023 passed by the learned Senior Civil Judge, Dhenkanal on the grounds stated therein. 3. Mr. Panda, learned counsel for the petitioners submits that the decree in C.S. No. 202 of 2006 is sought to be executed in Execution Case No. 22 of 2023, however, the same has not been entertained by the learned court below being barred by limitation, which is erroneous and while stating so, the decisions, such as, Chandi Prasad and Others Vrs. Jagdish Prasad and Others (2004) 8 SCC 724 and Shanthi Vrs. T.D. Vishwanathan and Others 2018 (II) OLR 1028 are referred to. The submission of Mr. Panda, learned counsel for the petitioners is that rule of merger applies and the same has been lost sight of by the learned court below, for Page 1 of 4 considering the period of limitation to have commenced on and from the date of decree passed i.e. on 2nd January, 2007 thereby concluding that such execution is barred by limitation. 4. Recorded the objection of Mr. Maharana, learned counsel for the opposite parties. 5. In fact, Mr. Panda, learned counsel for the petitioners is directed to serve a copy of petition with annexures on Mr. Maharana, learned counsel for the opposite parties in course of the day. 6. With the consent of learned counsels for both the sides, the hearing is taken up and the matter is disposed of with the following order, since, only a point of law is involved. 7. As far as the suit is concerned, the same was instituted at the behest of the petitioners in C.S. No. 202 of 2005 and was disposed of and decreed in the year 2006. In fact, from the impugned order i.e. Annexure-1, the Court finds that decree was drawn up on 2nd January, 2007 with the disposal of the suit on 20th of November, 2006. Learned court below has declined to entertain the execution, since it was beyond the prescribed period counted from the date of judgment and decree in the suit. 8. In so far as the legal position is concerned, according to Mr. Panda, learned counsel for the petitioners, the execution could not have been dismissed as barred by limitation, since the appeal filed against the judgment and decree was disposed of only on 13th May, 2022 in RFA No. 111 of 2021 by the learned Additional District Judge, Dhenkanal. It is submitted that the decree in appeal has not been challenged by the opposite parties. The contention is that in Page 2 of 4 view of the rule of merger, the limitation is commenced upon disposal of the appeal. 9. For better appreciation, the relevant extracts of the decision in Chandi Prasad (supra) are reproduced herein below: “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 of merger does not apply but when an appeal is dismissed, it does.” In Shanthi (supra), in a similar case, the apex Court held and observed that a decree is enforceable only upon disposal of the appeal in view of the doctrine of merger. 10. The sum and substance of the decisions referred to herein before is that the limitation is to be counted only upon the decree held to be enforceable. In the instant case, the appeal filed against the judgment and decree in the suit was disposed of in the year 2022 by the court of learned Additional District Judge, Dhenkanal. In view of the doctrine of merger, the ratio decided by the Apex Page 3 of 4 Court time and again and reiterated in Chandi Prasad and Shanthi (supra), the Court reaches at an irresistible conclusion that the learned court below committed an error in declining to entertain the execution as barred by limitation. In other words, the Court is of the view that upon disposal of RFA No. 111 of 2021, since rule of merger applies, the decree becomes enforceable and limitation begins on and from 13th May, 2022. 11. Hence, it is ordered. 12. In the result, the CMP stands allowed. As a necessary corollary, the impugned order dated 24th September, 2024 under Annexure-1 in Execution Case No. 22 of 2023 passed by the learned Senior Civil Judge, Dhenkanal is hereby set aside restoring the execution proceeding in Execution Case No. 22 of 2023 for disposal as per and in accordance with law. 13. In the circumstances, there is no order as to costs. 14. Issue urgent certified copy as per rules. (R.K. Pattanaik) Judge GDS Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: OHC, CUTTACK Date: 24-Feb-2025 12:31:39 Page 4 of 4