SMT. RAMKANWAR D/O SHRI NARAYAN SINGH (W/O LATE SHRI MALU SINGH) vs YADVENDRA SINGH

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment
Reportable

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1. The present civil writ petition has been filed assailing the
order dated 20.02.2026 (Annexure-11), passed by learned
Appellate Rent Tribunal, Jaipur Metropolitan-I, in CMA No.
05/2026, whereby the learned Appellate Rent Tribunal rejected the
petitioner’s prayer for stay of the execution proceedings during
pending appeal.
2. The brief facts giving rise to the present writ petition are
that, on 06.04.1979, the plaintiff–respondent No. 1, Yadvendra
Singh, along with other plaintiffs, instituted a suit for eviction,
mesne profits, and damages. In the said proceedings, the original
defendant was Shri Narayan Singh. After his demise, his wife,
Smt. Ucchal Singh, along with four of his sons, were impleaded as
parties. Smt. Ucchal Singh also expired during pending suit;
consequently, the decree was passed against the remaining sons,
who are arrayed as respondent Nos. 2 to 5. The suit was decreed
by the learned Additional Civil Judge (Senior Division) and
Additional Civil Judge-cum-Additional Chief Judicial Magistrate No.
1, Jaipur City, Jaipur, vide judgment dated 21.03.2001.
2.1 Aggrieved by the judgment dated 21.03.2001, respondent
Nos. 2 to 5 preferred an appeal before the learned First Appellate
Court. The learned First Appellate Court, vide judgment dated
21.07.2010, modified the decree to the extent that, since plaintiff
No. 2 had expired, the decree was to be passed in favour of
plaintiff No. 4, namely Yadvendra Singh (who was respondent No.
4 in the appeal). It was specifically directed that the appellants–
defendants shall hand over peaceful and vacant possession of the
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property, as described in Paragraph No. 2 of the plaint, to the said
plaintiff, and shall also pay mesne profits at the rate of Rs. 75/-
per month from 01.09.1976 till the date of handing over
possession. The learned First Appellate Court further directed that
the decree be prepared accordingly, which was done on
21.07.2010.
2.2 The original defendants, being aggrieved by the judgment of
the learned First Appellate Court, preferred a second appeal
before this Court, being S.B. Civil Second Appeal No. 383/2010. A
Co-ordinate Bench of this Court, vide order dated 31.05.2024,
dismissed the appeal at the admission stage, holding that no
substantial question of law arose for consideration. Thereafter, the
original defendants approached the Hon’ble Apex Court by filing a
Special Leave Petition, being SLP (Civil) Diary No(s). 42899/2024,
which also came to be dismissed vide order dated 09.12.2024.
2.3 Pursuant to the decree dated 21.07.2010 passed by the
learned First Appellate Court, the decree-holder, Yadvendra Singh,
filed an execution application on 27.05.2022. In the said
proceedings, the present petitioner, Smt. Ramkanwar, filed an
application under Order 21 Rule 99 read with Section 151 CPC,
claiming herself to be the daughter of the original tenant, Shri
Narayan Singh. It was contended that, being a legal heir and
having rights in the tenanted premises, the decree could not be
executed against her without impleading her as a party. It was
further alleged that her brothers (respondent Nos. 2 to 5) were
acting in collusion and intended to sell the property. It was also
submitted that the petitioner had filed a separate suit on
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07.09.2022 for partition and permanent injunction. Accordingly, it
was prayed that her application be allowed and the execution
petition be dismissed.
2.4 Thereafter, in compliance of the order dated 18.11.2025, the
petitioner filed an amended objection petition under Order 21 Rule
99 read with Section 151 CPC. However, the said objections were
dismissed by the learned Executing Court vide order dated
18.12.2025. Aggrieved thereby, the petitioner preferred an appeal
and also filed an application seeking stay of the execution
proceedings.
2.5 The learned Appellate Rent Tribunal, vide order dated
20.02.2026, rejected the petitioner’s application for stay of the
execution proceedings.
2.6 Hence, being aggrieved, the present writ petition has been
filed by the petitioner.
3. Learned counsel for the petitioner submits that the learned
Executing Court has erroneously rejected the petitioner’s
objections filed under Order 21 Rule 99 read with Section 151
CPC. He further submitted that although an appeal has been
preferred against the said order, the prayer for stay of execution
during the pending appeal has been wrongly declined by the
learned Rent Appellate Tribunal.
3.1 Learned counsel further contends that the learned executing
Court failed to consider the provisions of Sections 3 and 9 of the
Limitation Act, 1963, which mandate that any suit, application, or
appeal filed beyond the prescribed period of limitation must be
dismissed, even if limitation is not raised as a defense, and that
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once limitation begins to run, it cannot be halted. It was also
submitted that the execution application filed on 27.05.2022,
nearly 21 years after the original decree dated 21.03.2001, is
clearly barred by limitation, as the statutory period for execution
is 12 years from the date the decree becomes enforceable.
3.2 Learned counsel for the petitioner further submitted that the
learned courts below failed to properly appreciate the provisions of
Order 41 Rule 5 CPC, which provide that mere filing of an appeal
does not operate as a stay of execution of the decree and
therefore the limitation to file execution will start from the date
when the decree is passed by the first court and not from the date
when the appeal is dismissed. On this basis learned counsel for
petitioner submitted that the in present case the limitation will
start from the date of decree by the first court i.e. 21.03.2001.
3.3 Learned counsel for the petitioner prayed that the present writ
petition be allowed, the order dated 20.02.2026 be quashed and
set aside, and execution proceedings may be stayed till disposal of
petitioners’ appeal before the learned Appellate Court.
3.4 Learned counsel for the petitioner further submitted that
since the petitioner was not made party in the suit and there
being no decree against the petitioner therefore the decree cannot
be executed against the petitioner.
3.5 Learned counsel for the petitioner has relied upon the
following judgments in support of his case:
(i) Dr. Jagmittar Sain Bhagat vs Dir. Health
Services, Haryana and Ors. ; (2013) AIR (SC) 3060.
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(ii) Bimal Kumar & Anr. vs Shakuntala Debi & Ors. ;
(2012) AIR (SC) 1586.
(iii) M/s Khurana Brothers vs Anand Bardhan
Principal Secretary & Anr. ; 2025 INSC 1240.
4. Per contra, learned counsel for the respondents submitted
that the present writ petition is premature, as the appeal is still
pending adjudication before the learned Appellate Rent Tribunal. It
was further submitted that the supervisory jurisdiction under
Article 227 of the Constitution of India is very limited and there is
no perversity in the order impugned.
4.1 Learned counsel for the respondents contended that the
petitioner’s plea regarding limitation is misconceived. The decree
dated 21.03.2001 stood merged with the judgment and decree
passed by the First Appellate Court dated 21.07.2010, which was
subsequently affirmed by this Court vide order dated 31.05.2024
and attained finality upon dismissal of the Special Leave Petition
on 09.12.2024. It is a settled principle of law that once an
appellate decree is passed, the Trial Court’s decree merges into
the appellate decree, irrespective of whether it is affirmed,
modified, or reversed.
4.2 Learned counsel for the respondents also submitted that the
petitioner’s father was the tenant in the disputed premises and
after death the sons were made party and the petitioner never
came forward to challenge the decree of eviction. It was argued
that after demise of original tenant, the successors come in
possession of the tenanted premises as joint tenant and not as co-
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tenant therefore decree against one joint tenant is executable
against every other joint tenant.
4.3 Accordingly, learned counsel for the respondents prayed that
the present writ petition be dismissed and the order dated
20.02.2026 be upheld.
4.4 Learned counsel for the respondents relied upon various
judgments of the Hon’ble Apex Court and this Court in support of
his case:
(i) Balbir Singh & Anr. vs Baldev Singh (D) through
his LRs & Ors. ; 2025 INSC 81.
(ii) Surinder Pal Soni vs Sohan Lal (D) Thru LRs ;
(2020) 15 SCC 771.
(iii) MMTC Limited vs Anglo American Metallurgical
Coal Pvt. Ltd. ; 2025 SCC Online SC 2328.
(iv) Garment Craft vs Prakash Chand Goel ; (2022) 4
SCC 181.
(v) Smt. Chaya Sethi & Ors. vs Jitnendra Bohra &
Ors. ; S.B. Civil Writ Petition No. 5320/2020 decided on
07.02.2026.
(vi) Celir LLP vs Sumati Prasad Bafna ; 2024 SCC Online
SC 3727.
(vii) Pradeep Mehra vs Harijvan Jethwa ; 2023 SCC
Online sc 1395.
(viii) Rahul S Shah vs Jinendra Kumar Gandhi ; (2021)
6 SCC 18.
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(ix) Mohd. Hussain vs Occhavlal & Ors. ; (2008) 3 SCC
233.
5. Heard learned counsel for both parties and perused the
material available on record.
6. Before adverting on the merits of the case, it is apposite to
examine the scope of interference available to this Court while
exercising its jurisdiction under Article 227 of the Constitution of
India, the scope of interference available with this Court is very
limited.
6.1 The said position of law has been reiterated time and again by
the Hon’ble Apex Court in the judgments of Sadhana Lodh vs
National Insurance Company Limited & Anr. ; 2003 (3) SCC
524 and Ranjeet Singh vs Ravi Prakash ; 2004 (3) SCC 682
wherein the Court has held that the interference under Article 227
of the Constitution of India is warranted only in cases where there
is flagrant violation of the fundamental principles of law or justice,
or where there is a patent error, not requiring elaborate
examination. Thus, the Court ought not to re-appreciate or
re-evaluate evidence as if it were exercising appellate jurisdiction.
Hence, the Court is vested with limited role and cannot interfere in
findings of fact unless the same are shown to be perverse,
patently illegal or vitiated by a jurisdictional error. Keeping these
principles in mind, the submissions advanced by learned counsel
for both the parties have been considered.
7. On bare perusal of the material available on record, the sole
question that arises for consideration before this Court is whether
the execution of decree was time barred or not.
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7.1 The following facts are not in dispute:-
(i) The plaintiff–respondent No. 1, Yadvendra Singh, along
with other plaintiffs, instituted a suit seeking eviction, mesne
profits, and damages. The said suit came to be decreed by
the learned trial Court vide judgment dated 21.03.2001.
(ii) Aggrieved by the aforesaid judgment dated 21.03.2001,
respondent Nos. 2 to 5 preferred an appeal before the
learned First Appellate Court, which, vide judgment dated
21.07.2010, modified the decree passed by the trial court.
(iii) Being dissatisfied with the judgment of the learned First
Appellate Court, the original defendants preferred a second
appeal before this Court, being S.B. Civil Second Appeal No.
383/2010. A Co-ordinate Bench of this Court, vide order
dated 31.05.2024, dismissed the said appeal at the
admission stage.
(iv) Thereafter, the original defendants approached the
Hon’ble Apex Court by way of a Special Leave Petition, being
SLP (Civil) Diary No(s). 42899/2024, which also came to be
dismissed vide order dated 09.12.2024.
(v) After losing the battle up to Hon’ble apex court, the
objections came to be filed by the petitioner in the execution
petition which were dismissed by the executing court and
appeal was preferred by the petitioner in which after detailed
analysis declined to stay the execution proceedings.
7.2 It is a well-settled principle, as enunciated in a catena of
judgments rendered by the Hon’ble Apex Court, that where an
appeal is provided under a statute and the appellate forum is duly
invoked and entertains the same, the suit, for all intents and
purposes, continues. When a superior forum entertains an appeal
and adjudicates upon it on merits, the doctrine of merger comes
into operation.
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7.3 The doctrine of merger is founded upon the principles of
judicial propriety within the hierarchical structure of the justice
delivery system. It applies irrespective of whether the Appellate
Court affirms, modifies, or reverses the decree passed by the Trial
Court. The doctrine postulates that there cannot exist more than
one operative decree at a given point in time.
7.4 The said doctrine has been succinctly explained by the
Hon’ble Apex Court in Kunhayammed v. State of Kerala;
(2000) 6 SCC 359 , wherein it was held as under:
“12. The logic underlying the doctrine of merger is that
there cannot be more than one decree or operative
orders governing the same subject-matter at a given
point of time. When a decree or order passed by inferior
court, tribunal or authority was subjected to a remedy
available under the law before a superior forum then,
though the decree or order under challenge continues to
be effective and binding, nevertheless its finality is put in
jeopardy. Once the superior court has disposed of the lis
before it either way – whether the decree or order under
appeal is set aside or modified or simply confirmed, it is
the decree or order of the superior court, tribunal or
authority which is the final, binding and operative decree
or order wherein merges the decree or order passed by
the court, tribunal or the authority below. However, the
doctrine is not of universal or unlimited application. The
nature of jurisdiction exercised by the superior forum
and the content or subject-matter of challenge laid or
which could have been laid shall have to be kept in
view.”
7.5 In the case of Surinder Pal Soni (Supra), while explaining
the doctrine of merger, the Court held that:
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“17 We are unable to accept the submission. The
doctrine of merger operates as a principle upon a
judgment being rendered by the Appellate Court. In the
present case, once the Appellate Court confirmed the
judgment and decree of the Trial Court, there was
evidently a merger of the judgment of the Trial Court
with the decision of the Appellate Court. Once the
Appellate Court renders its judgment, it is the decree of
the Appellate Court which becomes executable. Hence,
the entitlement of the decree holder to execute the
decree of the Appellate Court cannot be defeated.”
7.6 In the case of Balbir Singh & Anr. (supra), the Hon’ble Apex
Court held that the doctrine of merger applied, meaning the Trial
Court's decree merged with the High Court's decision. The
relevant paragraph is reproduced as under:
“34. Thus, once the High Court allowed the second
appeals in favour of the Plaintiffs, there was evidently a
merger of the judgment of the trial court with the
decision of the High Court. Once the High Court as an
appellate court in second appeal renders its judgment it
is a decree of the second appellate court which becomes
executable hence, the entitlement of the decree holder
to execute the decree of the second appellate court
cannot be defeated.”
7.7 This Court further finds support to arrive at the said
reasoning by placing reliance on the judgments passed by various
High Courts wherein it has been held that the appeal is
continuation of the suit and the decree of the Trial Court merges
with the decree of the Appellate Court. The Madras High Court in
the case of K.G. Sathyamurthy vs State Bank of Travancore,
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Pollachi Branch & Anr. ; 2015 (2) MLJ 597 while dealing with
similar case observed and held as under:
“6. It is settled law that the appeal is to be considered to
be a continuation of the suit and the decree of the trial
court merges with the decree of the Appellate Court.
Even if there is any modification made by the Appellate
Court, the decree of the Appellate court supercedes the
decree of the trial court. Limitation would start from the
date of decree passed by the appellate court and not by
the trial court.”
7.8 Similarly, the Punjab and Haryana High Court in Baba Balbir
Singh vs Ram Kishan ; 2003 AIR(P&H) 250 held that the decree
becomes enforceable only when the appellate decree is made, and
the period of limitation for execution is to be reckoned from the
date of the appellate decree. A concurrent view was also taken by
the Patna High Court in the case of Manoj Kumar vs Krishna
Mohan Kumar ; Civil Misc. Jurisdiction No.584/2025 (decided on
14.10.2025) while observing that the decree of the subordinate
forum merges with the decree of the superior forum and is
therefore, not time barred.
7.9 A Bench of Bombay High Court in the case of Somnathappa
vs Kamalbai, since deceased through her Lrs; 2013 (4) MhLJ
419 , while discussing the doctrine of merger held that the merger
of the decree takes place irrespective of the fact as to whether the
Appellate Court affirms, modifies or reversed the decree passed by
the Trial Court.
7.10 The said principle was also extensively dealt by this Court in
the cases of Management Committee, Shri Dadu
Mahavidyalaya & Chhatrawas vs Bhanwar Lal Kumawat &
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Anr. ; 2015 1 RLW(Raj) 580 and Sayad Abdul Rauf vs Nurul
Hussain ; 1991 1 RLW(Raj) 263. The Co-ordinate Bench of this
Court in the case of Bhanwar Lal Kumawat (supra) succinctly
observed that by way of application of doctrine of merger, the
original decree no longer retains its form and what is sought to be
executed now is the amended decree. The relevant paragraph is
reproduced as under:
“17. The issue before this court is whether the decree
or the order became enforceable from 1983 or from
1995 when the original decree was modified by the
appellate court? Needless to say, once an original
decree passed by the trial court is modified by the
appellate court, the judgment and decree of the trial
court merge with the judgment and decree passed by
the appellate court. The theory of merger envisages
that the original judgment/ order passed by the trial
court merges in totality and not in piecemeal manner.
For, even if part of the original judgment and decree is
modified, the unmodified part of the original judgment
and decree is confirmed by the appellate court.
Therefore, the contention raised by the learned counsel
for the petitioner that the appellate court has merely
modified a part of the judgment and decree of the trial
court and hence, unmodified part continued to exist
from 1983 onwards, such an argument is clearly
untenable.”
7.11 With regard to the contention raised on behalf of the learned
counsel for the petitioner, founded upon the provisions of Order 41
Rule 5 CPC is misconceived and does not advance the case any
further. True it is that the mere filing of an appeal does not
operate as a stay of execution and, in absence of any express
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order of stay, the decree remains executable. However, the issue
of limitation for execution is governed not by mere enforceability
of the decree but by the principle as to when the decree attains
finality.
7.12 The law on the latter aspect now stands settled by a recent
judgment passed by the Hon’ble Supreme Court in Gajanan v.
Prahlad in Civil Appeal No.3524 of 2026 decided on 18.03.2026;
wherein it has been authoritatively held that an appeal being a
continuation of the original proceedings, the decree of the trial
court does not attain finality during its pendency. Even dismissal
of an appeal on technical grounds, including for default or non-
prosecution, amounts to final disposal, confirming the trial court’s
decree by application of the doctrine of merger and giving rise to a
fresh starting point of limitation for execution. It is, therefore,
immaterial whether any stay operated during the appeal. Upon
dismissal of the appeal, the limitation period must be reckoned
from that date, and not from the date of the original decree. The
relevant paragraph of Gajanan (supra) reads as under:
“17. While it is undisputed that there was no stay on
the operation of the decree of the Trial Court during
the pendency of the appeal and the said decree
remained enforceable, the dismissal of such appeal,
albeit in default, reset the limitation clock for filing of
the execution proceedings as it had the effect of
confirming the decree of the Trial Court.
21. The upshot of this discussion is that an appeal is
intrinsically a continuation of the suit and thus, even if
an appeal against an order or decree of the Trial Court
is dismissed on any preliminary or technical ground,
such as limitation or non-prosecution, rather than the
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merits of the case, it still gives rise to a fresh starting
point for the limitation period for execution of such
order or decree. The original decree of the Trial Court
cannot be deemed as “final” as long as the appeal
against the same remains pending. Thus, the order of
dismissal of the appeal finally disposes of the matter
and confirms the decree of the Trial Court, even if such
dismissal is for reason of non prosecution.”
(Emphasis Supplied)
7.13 Thus, while drawing support from the catena of judgments as
rendered by Hon’ble Supreme Court and various High Courts, this
Court is of the firm opinion that once the appeal is adjudicated by
the learned Appellate Court, the judgment and decree of the Court
below stand absorbed into the appellate decision by operation of
the doctrine of merger. In consequence, the decree as affirmed,
modified, or substituted by the learned Appellate Court alone
survives and attains enforceability. The decree of the Trial Court
ceases to have independent existence and is subsumed in the
appellate decree, which becomes the sole operative decree for the
purposes of execution.
7.14 In such circumstances, the decree holder acquires a vested
right to enforce the appellate decree, and such right cannot be
defeated or rendered illusory except in accordance with law.
7.15 So far as the judgments passed by the Hon’ble Supreme
Court, upon which learned counsel for the petitioner has placed
reliance, are concerned, in M/s Khurana Brothers (supra) ,
reliance has been placed on paragraph 7, wherein it is noted that
the doctrine of merger is not a doctrine of rigid and universal
application. It cannot be said that whenever there are two orders,
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one passed by an inferior court or tribunal and the other by a
superior court or tribunal in appeal or revision, there is necessarily
a fusion or merger of the two orders, irrespective of the subject
matter of the appellate or revisional order and the scope of the
appeal or revision contemplated under the relevant statute.
However, in the subsequent paragraph, the Court held that once
the appeal before the Division Bench of the High Court was
withdrawn, all orders passed therein also stood withdrawn, and
consequently, by a legal fiction, the parties stood relegated to the
stage as it existed on the date of filing of the intra-court appeal.
7.16 Further, in Dr. Jagmittar Sain Bhagat (supra) , the Hon’ble
Apex Court held that the doctrine of waiver does not apply in
cases involving an inherent lack of jurisdiction. Similarly, in Bimal
Kumar & Anr. (supra) , the Hon’ble Apex Court held that the
pendency of another suit challenging a decree on grounds of
fraud, or an appeal arising therefrom, does not arrest the running
of limitation under Article 136 of the Limitation Act in the absence
of any stay order restraining execution.
7.17 In the opinion of this Court, all the aforesaid judgments
cited by the petitioner are distinguishable from the present case,
as they pertain to situations involving withdrawal of an appeal,
inherent lack of jurisdiction, or pending of parallel proceedings,
none of which are the circumstances in the present case.
8. This Court further finds that the petitioner herein had filed an
application under Order 1 Rule 10 of the CPC seeking impleadment
as a party in the second appeal. The said application was initially
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withdrawn by the petitioner. Subsequently, an application for
review/recall was filed, which came to be dismissed by a
Coordinate Bench of this Court vide order dated 09.05.2024,
subject to payment of costs of Rs. 25,000/-.
9. This Court also observes that at no point of time, before the
the second appeal, did the petitioner approach this Court in a
timely manner. It was only during the pending of the second
appeal that she approached this Court claiming her rights. Her
application was dismissed as withdrawn, and thereafter, the recall
application was also dismissed with costs of Rs. 25,000/-, which
order has attained finality.
10. This Court further finds that the learned Appellate Court
found no ground to grant a stay of execution in favour of the
petitioner. The contention raised by the petitioner that she was not
impleaded as a party in the suit deserves to be rejected. A person
who succeeds to tenancy rights from his father does not become a
co-tenant but continues in possession as a joint tenant. Once a
decree has been passed against any one of the joint tenants, the
same is executable against the other joint tenants, as held by this
Court in the case of Chhaya Sethi (supra) .
11. This Court further notes that the suit pertains to the year
1979, in which a decree came to be passed by the Trial Court on
21.03.2001. An appeal was preferred against the said decree,
which was decided by the learned Appellate Court vide judgment
dated 21.07.2010. Thereafter, the second appeal preferred by the
defendants before the Hon’ble High Court was dismissed on
31.05.2024. It is also evident that during the pending of the
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second appeal, the petitioner had filed an application under Order
1 Rule 10, which was also rejected.
12. Thus, this Court finds that after having suffered multiple
adverse orders, the petitioner cannot be granted any liberty to
stall the execution proceedings. Accordingly, this Court finds no
error warranting interference under its writ jurisdiction under
Article 227 of the Constitution of India.
13. In view of the forgoing discussion, the present writ petition
is devoid of merit and is accordingly dismissed . The order dated
20.02.2026 (Annexure-11), passed by learned Appellate Rent
Tribunal, Jaipur Metropolitan-I, in CMA No. 05/2026, is upheld.
14. Pending application(s), if any, stands disposed of.
(BIPIN GUPTA),J
Sudha/
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