Full Judgment Text
2025 INSC 368
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO (s). 3616/2024
RAJU NAIDU Appellant(s)……
VERSUS
CHENMOUGA SUNDRA & ORS. Respondent(s)…….
J U D G M E N T
PRASANNA B. VARALE, J:-
1. The present appeal arises from the judgement and order dated
18.01.2018 passed by the High Court of Judicature at Madras in
C.R.P. No. 4385 of 2014 wherein the High Court dismissed the
revision petition filed by the appellant herein.
BRIEF FACTS
2. The brief facts of the case are as follows:
Signature Not Verified
Digitally signed by
NEETU SACHDEVA
Date: 2025.03.20
13:41:16 IST
Reason:
1
2.1 One Chenmougam Aroumugam, father of respondent Nos. 1 to
8, had purchased ½ share of ‘A’ Schedule property under a sale deed
dated 31.01.1959. Subsequently, on 15.12.1959 Tiranti Tam, mother
of respondent Nos. 1 to 8 purchased another ½ share of ‘A’ property
and on the same day, the father donated his half share of ‘A’
Scheduled property to his wife. Hence, the mother became the
absolute owner of ‘A’ Schedule property bearing Door No. 10,
Mariamman Kovil Street Thiruvalluvar Nagar, Pondicherry.
2.2 On 11.02.1976, the mother expired leaving behind respondent
Nos. 1 to 8 as her legal heirs. Thereafter, on 19.12.1977, father of
respondent Nos. 1 to 8 purchased ‘B’ Schedule property bearing Door
No. 49, Chetty Street, Pondicherry, under a sale deed dated
12.12.1977. He bequeathed this ‘B’ schedule property by way of a
Will (Exhibit A7) dated 12.06.1978 in favour of respondent No. 9
allegedly after developing intimacy with her.
2.3 Subsequently, respondent No.2 filed OS No. 262 of 1980 against
his father before Principal District Munsif Court at Pondicherry for
permanent injunction restraining the father from alienating the suit
properties therein.
2
2.4 On 22.06.1981, the father executed a sale agreement (Exhibit
B1) with regard to ‘B’ schedule property in favour of the appellant for
a sale consideration of Rs. 60,000 and an amount of Rs.10,000 was
paid as an advance on the same day itself and Rs.30,000 was paid
later on. The balance amount of Rs.20,000 was left unpaid and the
appellant was put in possession of the ‘B’ schedule property.
2.5 The Principal District Munsif Court at Pondicherry decreed the
suit filed by respondent No. 2(O.S. No. 262 of 1980) on 30.09.1981
with a direction to the father of respondents Nos.1 to 8 that he shall
th
not alienate Item 2 of the suit properties to the extent of 7/8 share.
As regards Item 1 of the suit property, the Trial Court held that no
injunction is necessary as the property cannot be alienated without
the consent of the co-sharers.
2.6 On 19.11.1981, the father of respondent Nos. 1 to 8 executed
another Will (Exhibit A8) in favour of respondent No. 9 in respect of
‘A’ schedule property.
2.7 On 16.11.1982, during the pendency of appeal in AS No.46 of
1982 filed by the father, against the judgment & decree in OS No.262
of 1980, the father of respondent Nos. 1 to 8 died. Subsequently,
3
respondent Nos. 1 to 8 filed OS No. 4 of 1983 in the Court of Principal
Subordinate Judge at Pondicherry, against respondent No. 9 and the
appellant to declare that (Exhibit A7) Will dated 12.06.1978 and
(Exhibit A8) Will dated 19.11.1981 both executed by their father in
favour of respondent No. 9 are void and unenforceable and that
respondent Nos. 1 to 8 are the rightful owners of ‘A’ and ‘B’ schedule
properties and to direct the appellant herein to pay rent for ‘B’
schedule property.
2.8 On 01.08.1986, Principal Subordinate Judge at Puducherry in
OS No. 4 of 1983 passed judgment and decree declaring Exhibit A7
Will as void and not binding on respondent Nos. 1 to 8 and exhibit
th
A8 Will was declared void and unenforceable to the extent of 7/8
share. It was observed that respondent Nos. 1 to 8 are the rightful
th
owners of 7/8 share of ‘A’ schedule property and absolute owners
of ‘B’ schedule property. Further, respondent Nos. 1 to 8 were held
jointly and severally liable to refund the advance money of Rs. 40,000
to the appellant within a period of three months and they were held
entitled to recover possession of ‘B’ schedule property within one
month after such payment to the appellant.
4
2.9 Aggrieved by the said decree and judgment of the Trial Court,
both the parties filed their respective appeals which were heard
together by the Court of Ld. III Additional District Judge at
Pondicherry and vide common judgment dated 06.08.1993 it was
held that Ex A8 Will dated 19.11.1981 covering ‘A’ Schedule property
th
was valid to the extent of 1/9 share in favour of the respondent No.
9 irrespective of the fact that the respondent No. 9 was the
legitimate widow of the deceased or not, and the ( Exhibit A7) Will
dated 12.06.1978 covering ‘B’ Schedule property valid to the extent
th
of 1/4 share. The appeal was partly allowed by the Court in the
favour of the respondents and the Appeal No. 145 of 1989 filed by the
appellant herein i.e A.S. No. 145 of 1989 came to be dismissed.
2.10 Dissatisfied by the common order passed by the Appellate
Court, the appellant filed two review applications in C.R.A. No 3/94
and 4/94 before the III Additional District Judge, at Pondicherry to
review the above-mentioned order. During the pendency of the review
applications, respondent Nos. 1 to 8 filed E.P. No. 286 of 1999 in O.S.
No.4 of 1983 for execution along with the same they filed E.A. No.
364 of 1999 for enlarging 3 months period for depositing the advance
5
money of Rs. 40,000. The Ld. III Additional Judge vide order dated
13.12.2001 dismissed both the review applications holding that these
are not the matters which are covered under Order 47 Rule 1 of the
Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’).
2.11 On 08.09.2014, the Executing Court allowed the application
for execution and the respondent Nos. 1 to 8 deposited the advance
amount of Rs 40,000 in the Court and by order the Execution Petition
came to be allowed and the Court directed the delivery of possession
of ‘B’ Schedule property by the appellant.
2.12 Aggrieved by the order of delivery passed by the Executing
Court, the appellant filed a C.R.P No 4385 of 2014 before the High
Court Judicature at Madras. The High Court while dismissing the
review petition observed that the decree was modified by the
Appellate Court and hence the doctrine of ‘merger’ came into effect.
Therefore, the question of executing the decree immediately would
not arise. The review petition was pending before the Appellate Court
for a considerable period of time and came to be disposed of by a
common order only on 13.12.2001 and therefore, the expiry of period
of 12 years for filing of the execution is not correct. The High Court
6
also observed that due to the import of Section 148 of CPC and there
being no time limit fixed by the Appellate Court and that since the
decree of Trial Court merged with the Appellate Court, there was no
embargo on the part of the Executing Court to extend the time.
2.13 The High Court further observed that Section 53A of the
Transfer of Property Act, 1882 (hereinafter referred to as ‘TP Act’) will
not be applicable to the facts and circumstances of this case as the
appellant had knowledge about the pendency of the suit and had
entered into agreement with the father of the respondent Nos. 1 to 8.
SUBMISSIONS
3.1 Ld. Counsel appearing for the appellant submitted that
extension of time amounts to alteration of the decree granted by the
Trial Court and therefore, such order passed by the Executing Court
is non-est and impermissible in law. It was submitted that the decree
holder ought to have approached the Trial Court for extension of time
for deposit of earnest money. Ld. counsel relied on the judgment in
1
the case of Pradeep Mehra vs. Harijivan J Jethwa to state that
the executing court can never go behind the decree. The Ld. counsel
1
[2023 (4) SCALE 887].
7
also relied upon an order dated 08.12.2023 passed by this Court in
the case of Sanjay Shivshankar Chitkote vs. Bhanudas Dadaeao
2
Bokade (Died) through L.Rs. wherein it was held that the order
passed by the Executing Court was without any jurisdiction since the
appellant-decree holder had filed an application seeking permission
to deposit balance sale consideration before the Executing Court and
the judgment debtor had also filed application for rescission of the
contract under sub-section (1) of Section 28 of the Specific Relief Act,
1963 before the Executing Court which did not have the jurisdiction
to entertain the same.
3.2 Per contra, the Ld. counsel appearing for respondent No. 1 to 8
contended that Section 53A of TP Act is not applicable and the
appellant’s possession as part performance of the sale agreement
does not apply as they entered the property under a lease agreement
prior to the sale agreement making Section 53A of TP Act as
inapplicable. It was submitted that the decree of the Appellate Court
supersedes that of the Trial court and hence, the execution petition
is within the limitation period and the conditions imposed by the Trial
2
Civil Appeal No. 8022/2023.
8
Court are overridden by the decree of the Appellate Court. It was
further submitted that since the Appellate Court did not specify a
time frame, extension granted by the Executing Court is valid and
does not alter the decree which has merged with the Appellate Court’s
decision. It was submitted that applying the doctrine of lis pendens,
the appellant’s claim to the property based on the sale agreement
during litigation is not recognised. The appellant’s continued
possession of the property under the guise of part performance does
not confer any right against the respondents, who are the rightful
heirs. It was contended that the personal laws applicable to the
respondent’s father due to his French nationality and the limitation
on his rights to alienate property without the consent of the co-
sharers further invalidated the appellant’s claim of the property. It
was also submitted that the Revision Petition challenging the order
of delivery is not maintainable as the order granting extension for the
deposit had become final since it was not contended.
4. Feeling aggrieved and dissatisfied by the judgment of the High
Court, the appellant is now before us.
9
ANALYSIS
5. We have heard the submission of learned counsel representing
the parties. We have also gone through the material placed on record.
6. As stated above, the two major grounds raised by the learned
counsel for the appellant, while challenging the judgement and order
passed by the High Court impugned in the present petition, are as
follows:
(i) As the decree granted by the trial court became final, there was
no reason for the executing court to allow the application seeking
extension of time. The course as such adopted by the executing
court, is unsustainable as the same resulted in modifying the decree,
and the executing court could not have gone beyond the decree.
(ii) The second ground urged was of inordinate delay.
In our opinion, the learned High Court dealt with these grounds in
detail and recorded that there is no merit in the Revision Petition,
and resultantly the Revision Petition was dismissed. The learned
High Court in Para 24 of the judgement and order observed that:
“..the said submission made on behalf of the
learned senior counsel may look attractive in the
10
first blush nevertheless when the same is
critically examined in view of the decisions cited
on behalf of the learned counsel appearing for the
respondent Nos. 1 to 8, the decree passed by the
trial Court had been appealed against and the
appellate Court has passed judgment in Appeal
Suits in A.S.Nos.146 of 1986 and 145 of 1989
only on 6.8.1993 and in the appeals, the appellate
Court had modified the decree passed by the Trial
Court. Once the decree is modified by the
Appellate Court, the doctrine of 'merger' comes
into effect and therefore, the question of
executing the decree immediately would not arise.
Even otherwise, as held by the Courts as stated
supra, irrespective of the fact whether there was
modification or not, once the decree and
judgment passed by the Appellate Court, the
decree and judgment of the Trial Court merges
with the same.”
7. On perusal of the material placed before this Court, we are
unable to find any fault with these observations of the High Court
and the conclusion arrived at by the High Court. Similarly, the other
ground raised was of an inordinate delay. It was vehemently
submitted by the learned counsel for the appellant that the original
decree was passed on 01.08.1996 and the execution petitions were
filed after much lapse of the time and beyond the period of 12 years.
Now dealing with this ground also, the High Court was pleased to
observe that the objection raised by the counsel appearing for the
11
appellant that the execution petition was beyond the period of 12
years from the date of original decree dated 1.8.1996, cannot be
countenanced both on law and on facts for the simple reason that
the Appellate Court has passed decree and judgment in 1993. In fact
thereafter, the revision petitioner filed the revision before the
Appellate Court and that the revision petition was pending before the
Court and ultimately the same were disposed of by the common order
dated 13.12.2001 in C.R.A. Nos.3 and 4 of 1994. Thus considering,
the sequence of the facts, the learned High Court could not find any
force in the submission of the appellant that there was an
inordinance delay and on that ground itself, the appeal ought to be
rejected.
8. The High Court also dealt with the submissions raised by the
learned counsel for the appellant qua the applicability of Section 53A
of the TP Act. It is the admitted fact that the Revision Petitioner
having the knowledge of the pendency of the suit, had entered into
agreement with the father of the respondent Nos.1 to 8 and he could
not have better and valid right over the rights of the original
transferer and in that situation, no recourse could have been taken.
12
9. The High Court rightly observed that the Courts have uniformly
held that the limited rights of the transferee pendent lite on the
principle of lis pendens. Such limited rights cannot be stretched to
obstruct and resist the full claim of the decree holders to execute the
decree in their favour. In fact, the Courts have deprecated such
obstruction.
10. It may not be out of place to refer to the judgment of this Court
in support of the submission that the Trial Court decree was merged
in the decree passed by the Appellate Court. In the case of Chandi
3
Prasad & others versus Jagdish Prasad & others , in regard to
the doctrine of 'merger', the Hon'ble Supreme Court has observed as
under:
"MERGER:
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. 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
3
2004(8) SCC 724.
13
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. ...."
11. Thus, the appeal is devoid of any merit. Accordingly, the same is
dismissed.
12. Pending application(s), if any, stand(s) disposed of accordingly.
13. No order as to costs.
........................................J.
[SUDHANSHU DHULIA]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
MARCH 19, 2025.
14
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO (s). 3616/2024
RAJU NAIDU Appellant(s)……
VERSUS
CHENMOUGA SUNDRA & ORS. Respondent(s)…….
J U D G M E N T
PRASANNA B. VARALE, J:-
1. The present appeal arises from the judgement and order dated
18.01.2018 passed by the High Court of Judicature at Madras in
C.R.P. No. 4385 of 2014 wherein the High Court dismissed the
revision petition filed by the appellant herein.
BRIEF FACTS
2. The brief facts of the case are as follows:
Signature Not Verified
Digitally signed by
NEETU SACHDEVA
Date: 2025.03.20
13:41:16 IST
Reason:
1
2.1 One Chenmougam Aroumugam, father of respondent Nos. 1 to
8, had purchased ½ share of ‘A’ Schedule property under a sale deed
dated 31.01.1959. Subsequently, on 15.12.1959 Tiranti Tam, mother
of respondent Nos. 1 to 8 purchased another ½ share of ‘A’ property
and on the same day, the father donated his half share of ‘A’
Scheduled property to his wife. Hence, the mother became the
absolute owner of ‘A’ Schedule property bearing Door No. 10,
Mariamman Kovil Street Thiruvalluvar Nagar, Pondicherry.
2.2 On 11.02.1976, the mother expired leaving behind respondent
Nos. 1 to 8 as her legal heirs. Thereafter, on 19.12.1977, father of
respondent Nos. 1 to 8 purchased ‘B’ Schedule property bearing Door
No. 49, Chetty Street, Pondicherry, under a sale deed dated
12.12.1977. He bequeathed this ‘B’ schedule property by way of a
Will (Exhibit A7) dated 12.06.1978 in favour of respondent No. 9
allegedly after developing intimacy with her.
2.3 Subsequently, respondent No.2 filed OS No. 262 of 1980 against
his father before Principal District Munsif Court at Pondicherry for
permanent injunction restraining the father from alienating the suit
properties therein.
2
2.4 On 22.06.1981, the father executed a sale agreement (Exhibit
B1) with regard to ‘B’ schedule property in favour of the appellant for
a sale consideration of Rs. 60,000 and an amount of Rs.10,000 was
paid as an advance on the same day itself and Rs.30,000 was paid
later on. The balance amount of Rs.20,000 was left unpaid and the
appellant was put in possession of the ‘B’ schedule property.
2.5 The Principal District Munsif Court at Pondicherry decreed the
suit filed by respondent No. 2(O.S. No. 262 of 1980) on 30.09.1981
with a direction to the father of respondents Nos.1 to 8 that he shall
th
not alienate Item 2 of the suit properties to the extent of 7/8 share.
As regards Item 1 of the suit property, the Trial Court held that no
injunction is necessary as the property cannot be alienated without
the consent of the co-sharers.
2.6 On 19.11.1981, the father of respondent Nos. 1 to 8 executed
another Will (Exhibit A8) in favour of respondent No. 9 in respect of
‘A’ schedule property.
2.7 On 16.11.1982, during the pendency of appeal in AS No.46 of
1982 filed by the father, against the judgment & decree in OS No.262
of 1980, the father of respondent Nos. 1 to 8 died. Subsequently,
3
respondent Nos. 1 to 8 filed OS No. 4 of 1983 in the Court of Principal
Subordinate Judge at Pondicherry, against respondent No. 9 and the
appellant to declare that (Exhibit A7) Will dated 12.06.1978 and
(Exhibit A8) Will dated 19.11.1981 both executed by their father in
favour of respondent No. 9 are void and unenforceable and that
respondent Nos. 1 to 8 are the rightful owners of ‘A’ and ‘B’ schedule
properties and to direct the appellant herein to pay rent for ‘B’
schedule property.
2.8 On 01.08.1986, Principal Subordinate Judge at Puducherry in
OS No. 4 of 1983 passed judgment and decree declaring Exhibit A7
Will as void and not binding on respondent Nos. 1 to 8 and exhibit
th
A8 Will was declared void and unenforceable to the extent of 7/8
share. It was observed that respondent Nos. 1 to 8 are the rightful
th
owners of 7/8 share of ‘A’ schedule property and absolute owners
of ‘B’ schedule property. Further, respondent Nos. 1 to 8 were held
jointly and severally liable to refund the advance money of Rs. 40,000
to the appellant within a period of three months and they were held
entitled to recover possession of ‘B’ schedule property within one
month after such payment to the appellant.
4
2.9 Aggrieved by the said decree and judgment of the Trial Court,
both the parties filed their respective appeals which were heard
together by the Court of Ld. III Additional District Judge at
Pondicherry and vide common judgment dated 06.08.1993 it was
held that Ex A8 Will dated 19.11.1981 covering ‘A’ Schedule property
th
was valid to the extent of 1/9 share in favour of the respondent No.
9 irrespective of the fact that the respondent No. 9 was the
legitimate widow of the deceased or not, and the ( Exhibit A7) Will
dated 12.06.1978 covering ‘B’ Schedule property valid to the extent
th
of 1/4 share. The appeal was partly allowed by the Court in the
favour of the respondents and the Appeal No. 145 of 1989 filed by the
appellant herein i.e A.S. No. 145 of 1989 came to be dismissed.
2.10 Dissatisfied by the common order passed by the Appellate
Court, the appellant filed two review applications in C.R.A. No 3/94
and 4/94 before the III Additional District Judge, at Pondicherry to
review the above-mentioned order. During the pendency of the review
applications, respondent Nos. 1 to 8 filed E.P. No. 286 of 1999 in O.S.
No.4 of 1983 for execution along with the same they filed E.A. No.
364 of 1999 for enlarging 3 months period for depositing the advance
5
money of Rs. 40,000. The Ld. III Additional Judge vide order dated
13.12.2001 dismissed both the review applications holding that these
are not the matters which are covered under Order 47 Rule 1 of the
Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’).
2.11 On 08.09.2014, the Executing Court allowed the application
for execution and the respondent Nos. 1 to 8 deposited the advance
amount of Rs 40,000 in the Court and by order the Execution Petition
came to be allowed and the Court directed the delivery of possession
of ‘B’ Schedule property by the appellant.
2.12 Aggrieved by the order of delivery passed by the Executing
Court, the appellant filed a C.R.P No 4385 of 2014 before the High
Court Judicature at Madras. The High Court while dismissing the
review petition observed that the decree was modified by the
Appellate Court and hence the doctrine of ‘merger’ came into effect.
Therefore, the question of executing the decree immediately would
not arise. The review petition was pending before the Appellate Court
for a considerable period of time and came to be disposed of by a
common order only on 13.12.2001 and therefore, the expiry of period
of 12 years for filing of the execution is not correct. The High Court
6
also observed that due to the import of Section 148 of CPC and there
being no time limit fixed by the Appellate Court and that since the
decree of Trial Court merged with the Appellate Court, there was no
embargo on the part of the Executing Court to extend the time.
2.13 The High Court further observed that Section 53A of the
Transfer of Property Act, 1882 (hereinafter referred to as ‘TP Act’) will
not be applicable to the facts and circumstances of this case as the
appellant had knowledge about the pendency of the suit and had
entered into agreement with the father of the respondent Nos. 1 to 8.
SUBMISSIONS
3.1 Ld. Counsel appearing for the appellant submitted that
extension of time amounts to alteration of the decree granted by the
Trial Court and therefore, such order passed by the Executing Court
is non-est and impermissible in law. It was submitted that the decree
holder ought to have approached the Trial Court for extension of time
for deposit of earnest money. Ld. counsel relied on the judgment in
1
the case of Pradeep Mehra vs. Harijivan J Jethwa to state that
the executing court can never go behind the decree. The Ld. counsel
1
[2023 (4) SCALE 887].
7
also relied upon an order dated 08.12.2023 passed by this Court in
the case of Sanjay Shivshankar Chitkote vs. Bhanudas Dadaeao
2
Bokade (Died) through L.Rs. wherein it was held that the order
passed by the Executing Court was without any jurisdiction since the
appellant-decree holder had filed an application seeking permission
to deposit balance sale consideration before the Executing Court and
the judgment debtor had also filed application for rescission of the
contract under sub-section (1) of Section 28 of the Specific Relief Act,
1963 before the Executing Court which did not have the jurisdiction
to entertain the same.
3.2 Per contra, the Ld. counsel appearing for respondent No. 1 to 8
contended that Section 53A of TP Act is not applicable and the
appellant’s possession as part performance of the sale agreement
does not apply as they entered the property under a lease agreement
prior to the sale agreement making Section 53A of TP Act as
inapplicable. It was submitted that the decree of the Appellate Court
supersedes that of the Trial court and hence, the execution petition
is within the limitation period and the conditions imposed by the Trial
2
Civil Appeal No. 8022/2023.
8
Court are overridden by the decree of the Appellate Court. It was
further submitted that since the Appellate Court did not specify a
time frame, extension granted by the Executing Court is valid and
does not alter the decree which has merged with the Appellate Court’s
decision. It was submitted that applying the doctrine of lis pendens,
the appellant’s claim to the property based on the sale agreement
during litigation is not recognised. The appellant’s continued
possession of the property under the guise of part performance does
not confer any right against the respondents, who are the rightful
heirs. It was contended that the personal laws applicable to the
respondent’s father due to his French nationality and the limitation
on his rights to alienate property without the consent of the co-
sharers further invalidated the appellant’s claim of the property. It
was also submitted that the Revision Petition challenging the order
of delivery is not maintainable as the order granting extension for the
deposit had become final since it was not contended.
4. Feeling aggrieved and dissatisfied by the judgment of the High
Court, the appellant is now before us.
9
ANALYSIS
5. We have heard the submission of learned counsel representing
the parties. We have also gone through the material placed on record.
6. As stated above, the two major grounds raised by the learned
counsel for the appellant, while challenging the judgement and order
passed by the High Court impugned in the present petition, are as
follows:
(i) As the decree granted by the trial court became final, there was
no reason for the executing court to allow the application seeking
extension of time. The course as such adopted by the executing
court, is unsustainable as the same resulted in modifying the decree,
and the executing court could not have gone beyond the decree.
(ii) The second ground urged was of inordinate delay.
In our opinion, the learned High Court dealt with these grounds in
detail and recorded that there is no merit in the Revision Petition,
and resultantly the Revision Petition was dismissed. The learned
High Court in Para 24 of the judgement and order observed that:
“..the said submission made on behalf of the
learned senior counsel may look attractive in the
10
first blush nevertheless when the same is
critically examined in view of the decisions cited
on behalf of the learned counsel appearing for the
respondent Nos. 1 to 8, the decree passed by the
trial Court had been appealed against and the
appellate Court has passed judgment in Appeal
Suits in A.S.Nos.146 of 1986 and 145 of 1989
only on 6.8.1993 and in the appeals, the appellate
Court had modified the decree passed by the Trial
Court. Once the decree is modified by the
Appellate Court, the doctrine of 'merger' comes
into effect and therefore, the question of
executing the decree immediately would not arise.
Even otherwise, as held by the Courts as stated
supra, irrespective of the fact whether there was
modification or not, once the decree and
judgment passed by the Appellate Court, the
decree and judgment of the Trial Court merges
with the same.”
7. On perusal of the material placed before this Court, we are
unable to find any fault with these observations of the High Court
and the conclusion arrived at by the High Court. Similarly, the other
ground raised was of an inordinate delay. It was vehemently
submitted by the learned counsel for the appellant that the original
decree was passed on 01.08.1996 and the execution petitions were
filed after much lapse of the time and beyond the period of 12 years.
Now dealing with this ground also, the High Court was pleased to
observe that the objection raised by the counsel appearing for the
11
appellant that the execution petition was beyond the period of 12
years from the date of original decree dated 1.8.1996, cannot be
countenanced both on law and on facts for the simple reason that
the Appellate Court has passed decree and judgment in 1993. In fact
thereafter, the revision petitioner filed the revision before the
Appellate Court and that the revision petition was pending before the
Court and ultimately the same were disposed of by the common order
dated 13.12.2001 in C.R.A. Nos.3 and 4 of 1994. Thus considering,
the sequence of the facts, the learned High Court could not find any
force in the submission of the appellant that there was an
inordinance delay and on that ground itself, the appeal ought to be
rejected.
8. The High Court also dealt with the submissions raised by the
learned counsel for the appellant qua the applicability of Section 53A
of the TP Act. It is the admitted fact that the Revision Petitioner
having the knowledge of the pendency of the suit, had entered into
agreement with the father of the respondent Nos.1 to 8 and he could
not have better and valid right over the rights of the original
transferer and in that situation, no recourse could have been taken.
12
9. The High Court rightly observed that the Courts have uniformly
held that the limited rights of the transferee pendent lite on the
principle of lis pendens. Such limited rights cannot be stretched to
obstruct and resist the full claim of the decree holders to execute the
decree in their favour. In fact, the Courts have deprecated such
obstruction.
10. It may not be out of place to refer to the judgment of this Court
in support of the submission that the Trial Court decree was merged
in the decree passed by the Appellate Court. In the case of Chandi
3
Prasad & others versus Jagdish Prasad & others , in regard to
the doctrine of 'merger', the Hon'ble Supreme Court has observed as
under:
"MERGER:
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. 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
3
2004(8) SCC 724.
13
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. ...."
11. Thus, the appeal is devoid of any merit. Accordingly, the same is
dismissed.
12. Pending application(s), if any, stand(s) disposed of accordingly.
13. No order as to costs.
........................................J.
[SUDHANSHU DHULIA]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
MARCH 19, 2025.
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