CIVIL MISCELLANEOUS 02 of 2006 on 24 May 1991

1. Manoj Kumar Son of Late Ramdeo Kumar Resident of Village Saidpur,Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.

2. Santosh Kumar, Son of Late Ramdeo Kumar, Resident of Village Saidpur,Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.

... ... Petitioners

Versus

1. Krishna Mohan Kumar Son of Sri Madan Mohan Kumar, Resident ofVillage Saidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar,District- Bhagalpur.Village Saidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar,District- Bhagalpur.

2. Ram Mohan Kumar, Son of Sri Madan Mohan Kumar, Resident of VillageSaidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.Saidpur, Basa Tola Samharpur, P.S.- Gopalpur, P.O. Saidpur, Goiar, District-Bhagalpur.

3. Neha Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-Naugachiya, District- Bhagalpur.Naugachiya, District- Bhagalpur.

4. Sikha Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-Naugachiya, District- Bhagalpur.Naugachiya, District- Bhagalpur.

5. Priyani Kumari, Daughter of Ramdeo Kumar, Resident of Tetrai, P.S.-Naugachiya, District- Bhagalpur.Naugachiya, District- Bhagalpur.

6. Raghav Kumar, Son of Ramdeo Kumar, Resident of Tetrai, P.S.-Naugachiya, District- Bhagalpur.Naugachiya, District- Bhagalpur.

7. Shrey Kumar, Son of Ranjit Ray, Resident of Village Shahpur, P.O. Rkariya,P.S. Shambuganj, District- Banka.P.S. Shambuganj, District- Banka.

8. Janki Devi, Wife of Late Buchkun Kumar, Resident of Village- saidpur BasaTola, Samharpur, P.S. Gopalpur, District Bhagalpur.Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.

9. Shashi Kumar, Son of Late Buchkun Kumar, Resident of Village- saidpurBasa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.

10. Usha Kumari @ Anita, Daughter of Late Buchkun Kumar, Resident ofVillage- saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.Village- saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.

11. Pankaj Kumar, Son of Late Buchkun Kumar, Resident of Village- saidpurBasa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.

12. Reshma Bhardwaj, Daughter of Late Buchkun Nagar, Resident of Village-saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.saidpur Basa Tola, Samharpur, P.S. Gopalpur, District Bhagalpur.

... ... Respondents

======================================================Appearance :For the Petitioner/s: Mr. J. S. Arora, Sr. Advocate Mr. Rakesh Kumar, Advocate Mr. Himanshu Shekhar, Advocate Ms. Supriya Kumari, AdvocateFor the Respondent/s: Mr. Ram Sumiran Singh, Advocate ======================================================

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHACAV JUDGMENTDate :14-10-2025

The present civil miscellaneous petition has been filedby the petitioners for setting aside the order dated 05.03.2025passed by the learned Sub Judge-1[st], Naugachhia in TitleExecution Case No. 02 of 2006, whereby and whereunder thelearned executing court held that the said execution case hasbeen filed within the statutory period of 12 years.

02. Briefly stated, facts of the case are that therespondents 1[st] set are the decree holders and petitioners andrespondents 2[nd] set are the descendants of the original judgmentdebtors. The respondents 1[st] set filed Title Suit No. 100 of 1982for a decree of specific performance against the defendants ofthat suit for enforcement for an agreement for sale for executinga sale deed after payment of remaining amount of considerationmoney. The said suit was decreed on 24.05.1991 with adirection to the respondents 1[st] set to get the sale deed executedwithin a period of 60 days. Pursuant thereto, theplaintiffs/decree holders/respondents 1[st] set got the sale deedexecuted after depositing the consideration money on20.07.1991. The petitioners thereafter filed a miscellaneous caseunder Order 9 Rule 13 of the Code of Civil Procedure, 1908 (forshort ‘the Code) against the said decree vide Misc. Case No. 02

of 1992, which was dismissed on 25.06.1993. Against the saidorder of dismissal, the petitioners then preferred a miscellaneousappeal bearing Misc. Appeal No. 16 of 1993, which wasdismissed for non-prosecution on 11.10.1996. For execution ofdecree of Title Suit No. 100 of 1992, the decree holders filedexecution case in the year 2006 bearing Execution Case No. 02of 2006 for executing the said decree and declaration of decreeof possession. The petitioners who are the judgment debtorsappeared in the said case and filed an objection challenging themaintainability of the said case. Besides other grounds, questionof limitation was also raised regarding maintainability ofexecution case on 24.04.2024 by the petitioners. The learnedexecuting court, after hearing the parties, vide order dated05.03.2025, rejected the objection of the petitioners and the saidorder is under challenge before this Court.

03. Learned senior counsel, Mr. J. S. Arora, appearingon behalf of the petitioners submitted that the impugned order isbad in the eyes of law and suffers from manifest illegality. Thelearned executing court has not considered that the executioncase was filed after 15 years of passing of the decree andstatutory period of limitation being 12 years, on face of it, theexecution case, is hopelessly barred by limitation. Therefore, the

learned executing court committed jurisdictional error. Learnedexecuting court further failed in its responsibility of dischargingthe statutory duty casts upon it to consider the effect oflimitation in view of Section 3 of Limitation Act. The learnedexecuting court has further not appreciated that once a decree ispassed, it becomes executable from the date of decree itself,unless its operation of execution was stayed by any Court.Learned senior counsel further submitted that it is immaterialthat who has raised the question of limitation but what ismaterial is whether there is substance in the question brought tothe notice of the Court regarding maintainability of the case.Learned senior counsel further submitted that the learnedexecuting court also failed to appreciate that filing of amiscellaneous case under Order 9 Rule 13 of the Code and anyappeal against the dismissal of the said case would not stand inthe way of filing of execution case or execution relating todecree in question nor shall stand in the way of executability ofthe said decree. Since the execution case became barred bylimitation, the learned executing court committed jurisdictionalerror by not appreciating that once the period of limitationexpired, the enforceability/executability of the decree becamebarred and, in these circumstances, execution case was not maintainable. The learned executing court has failed to followthe mandate of Article 136 of the Limitation Act, limitation of12 years would start when the decree and orders becameenforceable and the present decree became enforceable on24.05.1991 itself. Therefore, the impugned order is notsustainable as it is completely illegal and against the law.

04. Mr. Arora further submitted that though theobjection has been taken by the petitioners under Order 21 Rule97 r/w Section 151 of the Code, the petitioner being party to theproceeding could not have taken objection under Order 21 Rule97 of the Code but wrong mentioning of provision is not fatal tothe consideration of the application if power to pass such anorder is available with the court. Therefore, wrong mentioningof provision is not fatal to the cause of the petitioners. In thisregard, learned senior counsel referred to the decision of theHon’ble Supreme Court in the case of Pruthvirajsinh N Jadeja(D) By Lrs. vs Jayeshkumar Chhakaddasm Shah, (2019) 9SCC 533wherein the Hon’ble Supreme Court held that it is wellsettled law that mere mentioning of an incorrect provision is notfatal to the application if the power to pass such an order isavailable with the court. Another decision relied on by thelearned senior counsel in the case of P. K. Palanisamy Vs. N.

Arumugham and another, (2009) 9 SCC 173, wherein theHon’ble Supreme Court held that only because a wrongprovision was mentioned by the appellant, the same, in theiropinion, by itself would not be a ground to hold that theapplication was not maintainable or that the order passedthereon would be a nullity. The Hon’ble Supreme reiterated thatit is a well settled principle of law that mentioning of a wrongprovision or non-mentioning of a provision does not invalidatean order if the court and/or statutory authority had the requisitejurisdiction therefor. While making this observation, theHon’ble Supreme Court referred to the decision in the case ofRam Sunder Ram vs Union Of India & Ors, (2007) 13 SCC255, wherein it has been held that if an authority has a powerunder the law, merely because while exercising that power thesource of power, is not specifically referred to or a reference ismade to a wrong provision of law, that by itself does not vitiatethe exercise of power so long as the power does exist and can betraced to a source available in law. This observation was madequoting N. Mani v. Sangeetha Theatre and Ors. (2004) 12SCC 278.

05. On the point of commencement of limitationperiod of 12 years, Mr. Arora referred to the decision of Hon’ble Supreme Court in the case of Ram Bachan Rai & Ors. vs. RamUdar Rai, 2006 (9) SCC 446 and submitted that facts of thecase are almost similar to the facts of the said case before theHon’ble Supreme Court. In the case before the Hon’bleSupreme Court, the suit was decreed ex parte on 3.5.1976 as thedefendants did not appear on the date fixed. No appeal was,however, filed against the aforesaid judgment and decree. Theappellants before the Hon’ble Supreme Court, who were thejudgment debtors, filed an application under Order 9 Rule 13 ofthe Code for setting aside the ex parte decree which wasdismissed for default on 14.7.1978. The said application was notrestored by the trial court and a Miscellaneous Appeal filed alsostood dismissed on 10.1.1987. The Civil revision filed againstthe order of dismissal was also dismissed on 6.4.1987. At nostage any stay was granted by any Court and the respondents asdecree holders filed an application for execution on 5.4.1991.When symbolic possession was taken by the decree holders, thejudgment debtors filed objection under Section 47 of the Codesaying that the decree was not legally enforceable as it wasbarred by time. The learned Subordinate Judge dismissed theobjection holding that the period of twelve years had to becounted from the date of dismissal of the Civil Revision by the High Court, i.e., from 6.4.1987 as the ex- parte decree hadmerged in it. Against the dismissal of Civil Revision, theappellant approached the Hon’ble Supreme Court. The Hon’bleSupreme Court relied on the decision of three Judge Bench inthe case ofDr. Chiranji Lal (D) by Lrs. V. Hari Das (d) by Lrs.,(2005 (10) SCC 746). In the aforesaid facts and circumstances,the Hon’ble Supreme Court held that the application forexecution filed on 5.4.1991 was clearly time barred having beenfiled beyond the period of twelve years prescribed under Article136 of the Limitation Act and, thus, held that the High Court aswell as the Executing Court committed illegality in coming to aconclusion that it was not barred by limitation.

06. Mr. Arora next referred to the decision in the caseof Bimal Kumar & Another vs. Shakuntala Debi & Others,(2012) 3 SCC 548, wherein the Hon’ble Supreme Court heldthat the decree was a final decree and, therefore, it wasimmediately executable. As at no point of time, there was anyorder by any court directing stay of operation of the judgmentand decree passed in partition suit and the question forconsideration before the Hon’ble Supreme Court was whetherthe period during which the suit and the appeal preferred by theappellants remained pending has to be excluded for the purpose

of limitation. The Hon’ble Supreme Court referred to thedecision in the case of Ratan Singh vs. Vijay Singh, AIR(2001) 1 SCC 469, wherein it has been held that normally adecree or order becomes enforceable from its date. But cases arenot unknownwhen the decree becomes enforceable on somefuture date or on the happening of certain specified events.TheHon’ble Supreme Court further held that filing of an appealwould not affect the enforceability of the decree, unless theappellate court stays its operation. But if the appeal results in adecree that would supersede the decree passed by the lowercourt and it is the appellate court decree which becomesenforceable. When the appellate order does not amount to adecree there would be no supersession and hence the lowercourt decree continues to be enforceable. The Hon’ble SupremeCourt also referred to the case of Ram Bachan Rai & Ors.(supra). Thus, having regard to facts and judicialpronouncement before it, the Hon’ble Supreme Court reachedthe conclusion that the initiation of execution proceedings wasindubitably barred by limitation and the appeal was allowed.

07. Mr. Arora next referred to the decision of aDivision Bench of this Court in the case of Branch Manager,Central Bank of India vs. M/s. A.M. Brothers, reported in 2013

(3) PLJR 807, wherein the Hon’ble Division Bench referred tothe cases of Bimal Kumar & Another (supra) and Ratan Singh(supra) and held that the ex parte decree passed in 1992continued to be enforceable from the date of decree itself andthere was no stay at any stage. The Hon’ble Divisionconsidering the hardship arising out of non-enforceability of adecree on the ground of limitation and public interest beingsuffered because of legal technicality, rejected such argument inview of the doctrine “"dura lex sed lex" which means that "thelaw is hard but it is the law". The Hon’ble Division Benchfurther referred to the decision in the case of MadamanchiRamappa & Anr vs Muthalur Bojjappa, AIR 1963 SC 1633,wherein it has been held what is administered in courts is justiceaccording to law and consideration of fair play and equity,however, important they may be, must yield to clear and expressprovisions of the law. Further, in India House Vs. Kishan N.Lalwani, (2003) 9 SCC 393, the Hon’ble Supreme Court heldthat the period of limitation statutorily prescribed has to bestrictly adhered to and cannot be relaxed or departed from forequitable consideration.

08. Thus, the learned senior counsel submitted that theimpugned order is completely illegal and hence, the same needs to be set aside.

09. Learned counsel appearing on behalf of therespondents 1[st] set vehemently opposed the contention of thelearned senior counsel for the petitioners. Learned counsel forthe respondent 1[st] set submitted that the judgment debtors filedan application viz. under Order 21 Rule 97 r/w Section 151 ofthe Code under some misconception. The judgment debtors arenot allowed to take objection in the aforesaid provision. Theyare not stranger and they cannot claim in Executing Court todecide their right, title and possession. Therefore, theapplication was not maintainable and it was rightly rejected. Thequestion of limitation could not be raised after the execution ofthe sale-deed and any objection on this account is barred bydoctrine of estoppel, waiver and acquiescence. Learned counselfurther submitted that against the ex parte decree, the judgmentdebtors preferred an application under Order 9 Rule 13, butmiscellaneous case of the judgment debtor has been dismissedon 25.06.1993. Thereafter, Misc. Appeal No. 16 of 1993 wasfiled by the judgment debtors and the same was also dismissedon 11.10.1996 in default. Meanwhile, the decree holders havedeposited the rest consideration amount within statutory periodas directed by the judgment of the learned trial court. In such circumstances, period of limitation under Article 136 of theLimitation Act would come into play from the date of11.10.1996 and the judgment and decree of the learned trialcourt merged with the decree of the appeal and from the date ofdismissal of the said appeal, limitation period would start.Therefore, the execution application was filed well within theperiod of limitation.

10. In support of his contention, learned counsel forthe respondent relied on a decision of learned Co-ordinateBench in the case of Sudarshan Prasad Vs.Smt. Rajpati Devi(Civil Misc. Jurisdiction No. 157 of 2020, decided on10.12.2024). Learned counsel for the respondents submitted thatthe issue before the learned Co-ordinate Bench was almostsimilar. The respondent therein filed a suit bearing Title Suit No.14 of 1994 for specific performance of contract and the suit wasdecreed ex parte against defendant vide judgment and decreedated 09.01.1998. The ex parte decree was challenged by filingMiscellaneous Case No. 13 of 1998 under Order IX Rule 13 ofthe Code bu the said miscellaneous case was dismissed on27.08.1999. The defendant, thereafter, challenged the said orderin miscellaneous appeal, which was also dismissed on25.08.2000. Against the aforesaid order, the defendant preferred a civil revision before this Court, which was also dismissed on31.08.2006. Thereafter, in the execution case filed by the decreeholder, maintainability of execution case was challenged on theground of limitation. Learned counsel further submitted that theobjection on the ground of maintainability of execution casewas rejected by the learned executing court which waschallenged in Civil Miscellaneous Jurisdiction No. 157 of 2020.Learned counsel next submitted that the decisions in the case(s)of Ram Bachan Rai (supra), Ratan Singh (supra), BranchManager, Central Bank of India (supra) were cited in supportof his contention by the petitioner therein but the learned Co-ordinate Bench, after discussing a number of case laws on thepoint of commencement of period of limitation, relied on thedecision of Hon’ble Supreme Court in the case ofKunhayammed Vs. State of Kerala, (2000) 6 SCC 359 and alsothe Division Bench decision of this Court in the case of RamMurti Choudhary @ Ram Murat Prasad Chaurasiya Vs. RamNihora Choudhary, (2017) 2 PLJR 136, dismissed the civilmiscellaneous petition holding that the dismissal of the civilrevision would amount to merger of a decree and the executionpetition was not found barred by limitation. Learned counselnext submitted that decision of the Co-ordinate Bench in the

case of Sudarshan Prasad (supra) has been affirmed by theHon’ble Supreme Court vide order dated 07.02.2025 passed inSpecial Leave to Appeal (C) No(s). 2765 of 2025 whereby andwhereunder the Hon’ble Supreme Court showed itsdisinclination to interfere with the impugned judgment passedby the Co-ordinate Bench of this Court.

11. Learned counsel for the respondent furthersubmitted that in the light of decision of Hon’ble Supreme Courtin the case of Kunhayammed (supra), the dismissal order of theappellate court would merge with the decree of trial court andthe limitation period would start from the date of dismissal ofthe appeal. Therefore, the execution case of the respondent isnot time barred. Learned counsel further submitted that it is thesubstance of the petitioners’ application and not the merenomenclature of the case and if any order is challenged before aSuperior Court, then it is an appeal against the order of lowercourt and the mere nomenclature would not change the nature ofthe appeal. Placing strong reliance on the decision in the case ofSudarshan Prasad (supra), learned counsel submitted thatdismissal of miscellaneous case against an ex parte decree waschallenged by the judgment debtor/petitioner before theappellate court by filing miscellaneous appeal, the order of the learned trial court has merged with the decision of the appellatecourt and for this reason, the execution case cannot be said to bebarred by limitation. Thus, the learned counsel submitted thatthere is no merit in the present petition and the impugned orderneeds no interference by this Court.

12. I have given my thoughtful consideration to therival submission of the parties in the light of peculiar facts of thecase.

13. Admittedly, the Title Suit No. 100 of 1982, filedby the plaintiffs/decree-holders for a decree of specificperformance for enforcement for an agreement for sale forexecuting a sale deed after depositing the consideration moneyon 20.07.1991, decreed on 24.05.1991. The miscellaneous casefiled by the petitioners under Order IX Rule 13 of the Code videMisc. Case No. 02 of 1992 came to be dismissed on 25.06.1993.Thereafter, the petitioners preferred Misc. Appeal No. 16 of1993, which was also dismissed on 11.10.1996, though for nonprosecution. The execution case has been filed in the year 2006.The challenge to the Execution Case No. 02 of 2006 is on theground that the limitation period of 12 years started from thedate when the ex parte decree was passed, i.e. on 24.05.1991,and came to an end in the year 2003 whereas the execution has been filed in the year 2006. However, the learned counsel forthe respondents 1[st] set contended that the decree of the learnedtrial court merged with the order of the appellate courtdismissing Misc. Appeal No. 16 of 1993 and, therefore, filing ofexecution case in the year 2006 was well within the limitationperiod of 12 years. Now, challenge to the order of the learnedexecuting court by the petitioner is based on the reliance placedby the learned senior counsel on the decisions in the case(s) ofRam Bachan Rai (supra), Ratan Singh (supra), BranchManager, Central Bank of India (supra). However, the learnedCo-ordinate Bench in the case of Sudarshan Prasad (supra)have considered these authorities. It was observed by thelearned Co-ordinate Bench that Ratan Singh (supra) has beenoverruled by the Hon’ble Supreme Court in the case of ShyamSundar Singh Vs. Pannalal Jaiswal, 2005(1) SCC 436.Thereafter, taking note of the Hon’ble Division Bench decisionof this Court in the case of Ram Murti Choudhary @ RamMurat Prasad Chaurasiya (supra), the learned Co-ordinateBench observed that this reference has been decided whilerelying upon the decision in the case of Kunhayammed (supra).Paragraph Nos. 32, 41 and 44 of Kunhayammed (supra) read asunder:

“32. It may be that in spite of having

“32. It may be that in spite of having

granted leave to appeal, the Court may dismissthe appeal on such grounds as may haveprovided foundation for refusing the grant atthe earlier stage. But that will be a dismissal ofappeal. The decision of this Court would resultin superseding the decision under appealattracting doctrine of merger. But if the samereasons had prevailed with this Court forrefusing leave to appeal, the order would nothave been an appellate order but only an orderrefusing to grant leave to appeal.

41. Once a special leave petition has beengranted, the doors for the exercise of appellatejurisdiction of this Court have been let open.The order impugned before the Supreme Courtbecomes an order appealed against. Any orderpassed thereafter would be an appellate orderand would attract the applicability of doctrineof merger. It would not make a differencewhether the order is one of reversal or ofmodification or of dismissal affirming theorder appealed against. It would also not makeany difference if the order is a speaking ornon-speaking one. Whenever this Court hasfelt inclined to apply its mind to the merits ofthe order put in issue before it though it may beinclined to affirm the same, it is customarywith this Court to grant leave to appeal andthereafter dismiss the appeal itself (and notmerely the petition for special leave) though attimes the orders granting leave to appeal and dismissing the appeal are contained in thesame order and at times the orders are quitebrief. Nevertheless, the order shows theexercise of appellate jurisdiction and thereinthe merits of the order impugned having beensubjected to judicial scrutiny of this Court.

44. To sum up, our conclusions are:

(i) Where an appeal or revision isprovided against an order passed by a court,tribunal or any other authority before superiorforum and such superior forum modifies,reverses or affirms the decision put in issuebefore it, the decision by the subordinate forummerges in the decision by the superior forumand it is the latter which subsists, remainsoperative and is capable of enforcement in theeye of law.

(ii) The jurisdiction conferred by Article136 of the Constitution is divisible into twostages. The first stage is upto the disposal ofprayer for special leave to file an appeal. Thesecond stage commences if and when the leaveto appeal is granted and the special leavepetition is converted into an appeal.

(iii) The doctrine of merger is not adoctrine of universal or unlimited application.It will depend on the nature of jurisdictionexercised by the superior forum and thecontent or subject-matter of challenge laid orcapable of being laid shall be determinative ofthe applicability of merger. The superior jurisdiction should be capable of reversing,modifying or affirming the order put in issuebefore it. Under Article 136 of the Constitutionthe Supreme Court may reverse, modify oraffirm the judgment-decree or order appealedagainst while exercising its appellatejurisdiction and not while exercising thediscretionary jurisdiction disposing of petitionfor special leave to appeal. The doctrine ofmerger can therefore be applied to the formerand not to the latter.

(iv) An order refusing special leave toappeal may be a non-speaking order or aspeaking one. In either case it does not attractthe doctrine of merger. An order refusingspecial leave to appeal does not standsubstituted in place of the order underchallenge. All that it means is that the Courtwas not inclined to exercise its discretion so asto allow the appeal being filed.

(v) If the order refusing leave to appeal isa speaking order, i.e., gives reasons forrefusing the grant of leave, then the order hastwo implications. Firstly, the statement of lawcontained in the order is a declaration of lawby the Supreme Court within the meaning ofArticle 141 of the Constitution. Secondly, otherthan the declaration of law, whatever is statedin the order are the findings recorded by theSupreme Court which would bind the partiesthereto and also the court, tribunal or authority in any proceedings subsequentthereto by way of judicial discipline, theSupreme Court being the Apex Court of thecountry. But, this does not amount to sayingthat the order of the court, tribunal orauthority below has stood merged in the orderof the Supreme Court rejecting the specialleave petition or that the order of the SupremeCourt is the only order binding as res judicatain subsequent proceedings between the parties.

(vi) Once leave to appeal has beengranted and appellate jurisdiction of SupremeCourt has been invoked the order passed inappeal would attract the doctrine of merger;the order may be of reversal, modification ormerely affirmation.

(vii) On an appeal having been preferredor a petition seeking leave to appeal havingbeen converted into an appeal before theSupreme Court the jurisdiction of High Courtto entertain a review petition is lost thereafteras provided by sub-rule (1) of Rule 1 of Order47 CPC.”

14. The learned Co-ordinate Bench in the case ofSudarshan Prasad (supra) held in Paras-29 and 30 as under:

“29. It is well settled that it is thesubstance of the petition/application and notthe mere nomenclature of the case chosen bythe parties that has determinative value. In my view, if any order is challenged before asuperior Court then it is an appeal against theorder of the lower Court and the merenomenclature will not change the nature of theappeal. In the present case also, the ex partedecree of the Munsif was challenged before thelearned District Judge by filing aMiscellaneous Appeal, which was dismissed andthesamewasthereafterchallenged/appealed before the High Courtunder Civil Revisional Jurisdiction though thenomenclature is civil revision but, in fact, it isan appeal against the order passed by theDistrict Judge. In the present case, against theorder of appeal, a revision petition has beenfiled before this Court and in the revision, theorder of the appeal has been affirmed andtherefore, the decision of the subordinate Courti.e. Munsif has merged in the decision of thesuperior forum i.e. in the order of this Courtand therefore, the same is capable ofenforcement in the eye of law.

30. In view of the aforesaid discussions aswell as in view of the decisions rendered in thecase of Kunhayammed vs. State of Kerela(supra) and Ram Murti Choudhary @ RamMurat Prasad (D.B) (supra) dismissal of thecivil revision will amount to merger of a degreeand the same cannot be said to be barred bylimitation. Therefore, once it is held that theappellate decree has merged with the revisional order, the period of limitation for theexecution of decree will start from the date ofdismissal of the civil revision and therefore, theexecution case filed by the decree holder i.e.respondent-plaintiff is well within the period oflimitation.

15. The decision of the learned Co-ordinate Bench in

the case of Sudarshan Prasad (supra) was challenged beforethe Hon’ble Supreme Court in Special Leave to Appeal (C)No(s). 2765 of 2025 and the said Special Leave to Appeal hasbeen dismissed vide order dated 07.02.2025, thus, affirming thereasoning adopted by the learned Co-ordinate Bench. The factof the present case are similar to the case before the learned Co-ordinate Bench and adopting the same reasoning and in the lightof the decision rendered by the Hon’ble Supreme Court in thecase of Kunhayammed (supra), it can be safely concluded thatthe decree of the learned trial court merged with the order of thelearned appellate court and the period of limitation for executionof decree would start from the date of dismissal of Misc. AppealNo. 16 of 1993. Therefore, Execution Case No. 02 of 2006 filedby the decree holders/respondent 1[st] set is well within the periodof limitation.

16. Therefore, in the light of discussion made here-in-before, I do not find any infirmity in the impugned order dated 05.03.2025 passed by the learned Sub Judge-1[st], Naugachhiaand the same is hereby affirmed.Accordingly, the presentpetition is dismissed.

17. The stay granted vide order dated 13.08.2025stands vacated.

18. Pending interlocutory applications, if any, stand disposed of.

Ashish/-

AFR/NAFRAFRCAV DATE13.08.2025Uploading Date14.10.2025Transmission DateNA

(Arun Kumar Jha, J)