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IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 10442 OF 2011  

SHANTHI                 ...Appellant  

Versus  

T.D. VISHWANATHAN AND OTHERS   ...Respondents  

O R D E R  

This appeal is directed against the judgment dated  

22.01.2007, passed by the learned Single Judge of the High  

Court of Judicature at Madras in C.R.P. (NPD) No. 1829 of 2006.  

By the impugned judgment, the High Court while dismissing the  

revision petition has confirmed the orders of the Executing Court  

dated 1.11.2006 in E.A. No. 3570 of 2006 in E.P. No. 249 of 2006  

in O.S. No. 649 of 1977.

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2. The suit was filed by the plantiffs/respondents for recovery  

of possession and arrears of rent against the defendant/appellant  

herein.  

The appellant was a tenant of the respondents. The property  

in question is a residential house. The Trial Court, the first  

Appellate Court and the High Court have concurrently concluded  

that the plantiff 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 learned advocate for the  

appellant in this appeal is that the execution petition filed in the  

year 2006 is 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.  

3. In sum and substance, the case of the appellant is 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

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Court. He has also submitted that there is no interim order  

granted by the First Appellate Court and the Second Appellate  

Court. There was no hurdle for the respondents to file the  

execution petition within the prescribed period of limitation after  

the judgment of the Trial Court. It is submitted by the decree  

holder that the decree of the Trial Court and the first Appellate  

Court have merged in the decree of the High Court passed in  

second appeal. It is further submitted that the order of stay was  

operating in favour of the judgment debtor/debtor during the  

pendency of the appeals and hence the judgment debtor  

continued in possession.  

4. It is not in dispute that the execution petition has been filed  

within time from the date of the judgment of the High Court. The  

High Court dismissed the second appeal on 30.12.2003. The  

execution petition was filed in July 2006. Thus, undisputedly,  

the execution petition was within the period of limitation from the  

date of the judgment of the High Court.  

5. The aforementioned question raised by the learned advocate  

for the appellant is no more res-integra, inasmuch as the very  

question is decided by a Three Judge Bench of this Court, in the

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case of Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724,  

wherein it was observed that in terms of Article 136, Limitation  

Act 1963, a decree can be executed when it becomes enforceable.  

A decree is defined in Section 2(2) CPC, 1908 to mean the formal  

expression of an adjudication which, so far as regards the court  

expressing it, conclusively determines the rights of the parties  

with regard to all or any of the matters in controversy in the suit  

and may be either preliminary or final. A decree within the  

meaning of Section 2(2) of the CPC would be enforceable  

irrespective of whether it is passed by the Trial Court, the First  

Appellate Court or the Second Appellate Court. When an appeal  

is prescribed under a statute and the appellate forum is invoked  

and entertained, for all intents and purposes, the suit continues.  

When a higher forum entertains an appeal and passes an order  

on merit, the doctrine of merger would apply. The doctrine of  

merger is based on the principles of the propriety in the hierarchy  

of the 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

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operative decree governing the same subject matter at a given  

point of time.   

6. 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  

enforceable in view of the doctrine of merger. Hence, in our  

considered view, the execution petition filed by the  

plantiffs/respondents is within time, consequently the appeal  

fails and stands dismissed.  

 ........................J.                                           (N.V. RAMANA)  

         ........................J.  

                 (MOHAN M. SHANTANAGOUDAR)  

New Delhi,  October 24, 2018