- (1.) S. R. Singh, J. This petition Originates from execution case No. 179 of 1980 Krishna Gopal Chawala v. U. P. Jal Nigam and the gravamen of the petitioner is riveted on two orders, firstly the order dated 12-5-1995 passed by the then Civil Judge (Jr. Division), Kanpur Nagar there by rejecting the objections filed by the Judgment Debtor Le. U. P. Jal Nigam and the State of U. P. through the District Magistrate, Kanpur Nagar under Section 47 of the C. P. C. and secondly, the order dated 12-8-1997 passed by the 4th Addl. District Judge Kanpur Nagar thereby dis missing the revision preferred against the order dated 12-9-1995.
(2.) THE facts of the case draped in brevity are that Krishna Kumar Chawla and Others. , to begin with, instituted a civil suit (original Civil Suit No. 1714of 1963) in the Court of Munsif City, Kanpur for recovery of arrears of rent amounting to Rs. 914. 03 from 1-7-1962 to ll-8-1963,ejectmentand damages for use and occupation from 12-8-1963 till the date of delivery of posses sion against the State of U. P. Indisputably, the suit pertained to premises No. 7/86 built on Nazul plot No. 12 situate in Block No. 7 of Tilak Nagar Kanpur. Concededly, Nazul Plot No. 12 belonged to the State of U. P. but it was leased in favour of one Khan Bahadur Hafiz Mohammad Alim vide deed of lease executed by the Secretary of Estate for India on 19-2-1907 for a span of 40 years renewable at every 30 years. THE period of lease commenced from 4th December 1904. THE lessee was granted right of enjoyment of the demised proper ty by raising construction over it. Acting upon the lease, the lessee constructed a dwelling house which came to be num bered as premises No. 7/86 Tilak Nagar Kanpur and which was let out to the State of U. P. on 3rd May 1937. THE lease was in the meantime renewed on 22-3-1935 in favour of Haji Mohammad Sadiq son of the original lessee, Khan Bahadur Hafiz Mohd. Alim for a period of 30 years i. e. upto and inclusive of December 4,1964 by reason of the fact that the original lessee had died during the subsistence of the original lease. THE lessee in whose favour lease was renewed and/or his heirs, migrated to Pakistan as a result of which the property was declared as Evacuee property vide notification dated 3rd Oc tober 1952 and it was put to auction by the Manager, Custodian of Evacuee Property. Gyan Chand and Ors. purchased the lease hold rights which had vested in the Cus todian Evacuee Property on 1-6-1952. Later on, Gyan Chand and Others. sold off the property in question to the petitioner-Krishna Gopal Chawla and Others. through registered sale-deeds dated 16-7-1957,28-7- 1959 and 11-8j-1959 and 20-8-1959. THE suit for ejectment and mesne profits in stituted by Krisina Gopal Chawla and Others. ended up in dismissal in the trial Court. It was, however, decreed for arrears of rent amounting to Rs. 445. 63 P. THE decree passed by the trial Court was lent affir mance by the First Appellate Court. On a second appeal preferred by Krishna Gopal Chawla and Others. , the High Court allowed the appeal and decreed the suit for eject ment as well as for damages for use and occupation at the rate of Rs. 115 per month from the date of suit vide judgment and decree dated 20th September 1979. THE Civil Appeal No. 1366 of 1980 preferred against the said judgment came to be dismissed by the Supreme Court on 1-3-1994. THE execution case No. 179 of 1990 was in the meantime, instituted by the plaintiff-decree 1 holder in the Court of Munsif (City) Kanpur as a sequel to the decree passed by the High Court. In appeal by Special Leave preferred in the Supreme Court by the defendants against the decree dated 20th September, 1979, the Supreme Court made an! order staying execution proceedings pending disposal of the ap peal. However, the Civil Appeal preferred in the Supreme Court met the fate of dis missal vide judgment and decree dated March 1,1994 as stated supra. THE U. P. Jal Nigam which was impleaded in place of State of U. P was however allowed to remain in possession of the disputed premises for a period of one year from the date of judgment on filing an undertaking in terms of the order passed by the Apex Court within four weeks from the date of judgment dated March 1, 1994. THE U. P. Jal Nigam moved an application before the Apex Court On 28th March 1994 stat ing therein that the possession of the dis puted premises had been delivered to the State of U. P. on October 28, 1995. THE decree- holders, however, moved an ap plication in the Court of Munsif (City), Kanpur [now designated as Civil Judge (Junior Division)] to proceed further in the execution case No. 179 of 1992 for execution of the decree passed by the High Court Separate objections under Sections 47,37,38,39 and 151, C. P. C. were filed on behalf of U. P. Jal Nigam and State of U. P. demurring to the execution proceedings alleging, inter-alia, that the decree passed by the High Court had merged in the decree passed by the Supreme Court and hence, the application for execution of decree passed by the High Court was liable to be rejected ; that the Court of Civil Judge (Junior Division) was shorn of juris diction to execute the decree as it was not a Court by which the suit was initially ad judicated upon ; that the Court of 1st in stance, namely, the 4th Additional Civil Judge who had decided the suit, ceased to exist and since the suit for recovery of arrears of rent, ejectment and damages would now be cognizance by Judge, Small Causes Court Kanpur Nagar, the decree could be executed only by the Judge, Small Causes Court, and the lease hold interest which vested in the custodian and which was transferred to the predecessor-in-interest of the decree-holders at the auction sale, stood extinguished with the termina tion of lease by efflux of time and the property now vested in the State of U. P. and therefore, the Decree-holder lost their right to execute the decree. THE objections culminated is being rejected by the Civil Judge (Junior Division) Kanpur Nagar vide order dated 12-9-1995 which order came to be affirmed in revision by 4th Addl. District Judge Kanpur -Nagar vide judgment and order dated 12-8-1997. It is these orders which are subject-matter of impugnment in the instant petition. I have heard Sri Vinod Misra, Addl. Senior Standing Counsel appearing for the petitioners and Sri Pankaj Bhatia ap pearing for respondents 3 to 7. The first question that emerges for consideration is whether the decree passed by the High Court in the Second Appeal was capable of execution even after it merged in the decree passed by the Supreme Court in an appeal preferred by Special Leave against the decree passed by the High Court. The Courts below have held the view that for the purposes of execution, the decree passed by the High Court would not be reckoned to have merged in the decree passed by the Supreme Court. To lend cogency to this view, reliance has been placed on a decision of this Court in the case of Mithai Lal v. Thana & Ors. , AIR 1964 Alld 337.
(3.) IN State of Uttar Pradesh v. Mohd. Nooh, AIR 1958 SC 86, the doctrine of merger of a decree passed by the Court of 1st instance, in the decree passed in appeal therefrom, was considered by the Supreme Court as under: "in the next case, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in Revision it does so only for certain purposes, namely, for the pur poses of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41, INd. App 104 (AIR 1914 PC 65), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh, 63 INd App 197 : AIR 1926 PC 93. But as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Bold v. Pirthichand Lal, 46 INd App 52 : AIR 1918 PC 151, whatever be the theory under other system of law, under the INdian law and procedure an original decree is not suspended by the presen tation of an appeal nor is its operation inter rupted where the decree on appeal is merely one of dismissal. There is nothing in the INdian law to warrant the suggestion that the decree or order of the Court. or tribunal of the first in stance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. " Mohd. Nook's case came up for consideration before the Constitution Bench of the Supreme Court in Madan Gopal Rungta v. Secretary to the Govern ment of Orissa, AIR 1962 SC 1513, holding that the principles of Mohd. Nooh 's case would not be attracted for application to the facts of Madan Gopal Rungta 's case, what the Constitution Bench held is ex cerpted below : "we are of opinion that the principle of Mohd. Nooh's case cannot apply in the circumstances of the present case. The question there was whether the High Court could issue a writ under Art. 226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Government in April, 1950 after the Constitution came into force. It was in these circumstances that this Court held that the dismissal haying taken place in 1948 could not be subject-matter of an application under Art. 226 of the Constitution for what would be given retrospective effect to that Ar ticle. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held, firstly, that the principle of merger applicable to decrees of Courts would not apply to orders of departmental tribunals, and, secondly, that the original order of dismissal would be operative on its awn strength arid did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore, the order of dismissal having been passed before the Con stitution would not be open to attack under Art. 226 of the Constitution. We are of opinion that the facts in Mohd. Nooh 's case were of a special kind and the reasoning in that case would not apply to the facts of the present case. ";