A decree in a statutory second appeal attracts merger, starting Article 135 limitation from its date.

The decree holders obtained a decree for mandatory injunction in O.S. No. 450 of 1999. The defendants’ first appeal was dismissed on 20 October 2016. Their second appeal was dismissed as not pressed on 23 February 2022, and the High Court drew up a decree. The decree holders filed E.P. No. 423 of 2023 on 8 August 2023.

The judgment debtor argued that execution was barred by limitation because more than three years had passed since the first appellate decree. The executing court rejected that objection, holding that the first appellate decree had merged in the decree in the second appeal. The judgment debtor challenged that ruling in revision.

1. Whether the execution petition to enforce the mandatory-injunction decree was barred by limitation, given that it was filed more than three years after the first appellate decree but within three years of the second-appellate decree.

2. Whether the doctrine of merger applied where the second appeal was dismissed as not pressed, without a reasoned decision on the merits.

Article 135 of the Schedule to the Limitation Act, 1963, prescribes three years for enforcing a decree granting a mandatory injunction, running from the date of the decree or, where a date is fixed for performance, from that date.

Under the doctrine of merger, where a statutory appeal is entertained and the superior court affirms, modifies or reverses the decision, the superior court’s decree becomes the operative decree; whether merger applies depends on the nature and scope of the superior court’s jurisdiction and the matter before it.

The Court relied on Kunhayammed v. State of Kerala, Chandi Prasad v. Jagdish Prasad and Shanmugavel Nadar v. State of Tamil Nadu in applying that doctrine.

It distinguished dismissals that do not result in an appellate decree, including dismissal of a special-leave petition before leave is granted or dismissal of an appeal following refusal to condone delay.

The second appeal was a statutory remedy filed in time, remained pending, and proceeded after the deceased plaintiff’s legal representatives were impleaded. The judgment debtors then chose not to pursue it, and the High Court dismissed it and drew up a decree.

The Court held that this was not equivalent to a dismissal for non-prosecution before the appeal was entertained, nor to dismissal following refusal to condone delay. Because the second appeal challenged the concurrent decrees on the same subject matter and resulted in a decree of the High Court, the doctrine of merger applied. The execution period therefore ran from the second-appellate decree dated 23 February 2022, making the petition filed on 8 August 2023 timely.

It dismissed the civil revision petition. The interim order staying delivery was continued for three months, subject to the petitioner filing an affidavit before the execution court within two weeks agreeing to surrender vacant possession.