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TMI Blog1974 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... son of section 17 D of the, West Bengal Premises Tenancy Act, 1956 the decree for eviction is incapable of execution. Long, long back on May 19, 1953 Messrs. Hind State Private Ltd., the predecessors-in-title of the appellants, filed against the respondent a suit for eviction on the ground of non-payment of rent. On November 24, 1958 the learned Second Munsif, Alipore, passed a decree for possession in favour of the plaintiffs holding that by reason of defaults in the payment of rent, the respondent was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. That decree was confirmed in appeal by the learned Subordinate Judge, 4th Court, Alipore, on April 12, 1967. During the pendency of the appeal, the appellants had purchased the right, title and interest of the plantiffs in the suit premises and they had also obtained an assignment of the decretal rights in their favour. They were therefore brought on the record of the appeal in place of the original plantiffs. The respondent filed Second Appeal No. 1255 of 1967 against the decree of the 1st appellate court and that appeal, after a contested hearing, was dismissed by a Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation:-Where the decree was passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the Court of first instance. (2) Where-an application has been made under sub-section (1) for setting aside a decree, all proceedings in execution of the decree shall remain stayed until the application is disposed of. Sub-section (3) of section 17 D provides that on receipt of an application under sub-section (1) the court shall cause a notice thereof Lo be served on the landlord and after hearing such evidence as the parties may adduce, determine the questions referred to in clauses (a) and (b) of that sub-section. The court is then required to give to the tenant further time not exceeding sixty days to deposit the amount found due under clauses (a)and (b) of sub-section (3) together with such costs as the court may allow. If the tenant deposits the amount within the time granted under subsection (3), the court under subsection: (4) has to allow the application of the tenant, set aside the decree for the recovery of possession and dismiss the' suit. On January 12, 1970 which was a few days before he had under taken to vacate the Premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to claim the benefit of section 17 D, in which event the decree passed in the suit has to be set aside and there would be then no out- standing decree to execute. It is indisputable that a decree for possession was in fact passed in favour of the appellants predecessors-in-interest by the trial court on November 24, 1958 which was before the commencement of the Act of 1968. But that decree was taken in appeal first to the court ,of the Subordinate Judge which confirmed the decree and taken to the high Court which, after a contested hearing, dismissed the defendants' appeal and confirmed the decree passed by the Subordinate Judge. 'The decree of the High Court is dated January 5, 1969 and was passed after, not before, the commencement of the Act of 1968. The-question to be considered is whether the decree passed by the trial court can be deemed to have merged in the decree passed by the High Court. Learned counsel for both the sides have cited before us a large. number of decisions bearing on the principle of merger but a few preliminary observations will facilitate a better understanding of those decisions. The juristic justification of the doctrine of merger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for default of appearance or for want of prosecution or on the ground that the appeal has abated or is withdrawn or that the appellant has failed to furnish security for costs as provided in Order 41, Rule 10 of the Code of Civil Procedure, can have no application to- the instant case. Nor indeed are we concerned with that class of cases in which the suit covers a horizon wider than the appeal, which happens when only a part of the decree passed in the suit is carried in appeal to the higher court. Here, the decree in its entirety was challenged before the appellate courts. Section 17 D of the Act of 1956 confers power on the court to set aside decrees passed on account of the tenant's default in the payment of rent. This power was conferred evidently in order to give further relief to defaulting tenants, as stated in the Statement of Objects and Reasons of the Bill (Calcutta Gazette Extra Ordinary, dated August 2, 1969). An effective and meaningful exercise of the power to set aside the decree for possession postulates a power to set aside an operative decree; for, to set aside the decree of the court of first instance and to allow the decrees of- the appellate courts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree in the cause .(2) The Privy Council also adoptedthe statement contained in a judgment of Tudball J. to this effect : When the Munsif passed the decree it was open to the plaintiff or the: defendant to accept that decree or to appeal. If an appeal is preferred,, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties. Thus, when the decree of the court of first instance is confirmed by the High Court and the latter decree is confirmed by the Privy Council the decree capable of execution is the decree of the Privy Council.(3) In that case the decree passed by a District Judge in 1887 awarded future mesne profit to the plaintiff. That decree was reversed by the High Court but was confirmed by the Privy Council on May 11, 1895. When the matter came back in execution proceedings the Privy Council held that the decree which the courts had to execute was the one Passed by it in 1895 and since by that decree the District Judge's decree- was confirmed, the decree of 1895 clearly carried the mesne profits up to its own date. An application o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and enforceable in law, what merged in the appellate order was the Income-tax Officer's order under appeal and not his order of registration which was not and could not have become the subject-matter of an appeal before. the appellate authority. The position in regard to the doctrine of merger was stated thus by Gajendragadkar J. who spoke for the Court: There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If 'the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced.- In law the position would be just the same even if the appellate decision merely confirms (1) Jowad Hussain vs. Gendan Singh, 53 I.A. 197. (2) Bhup Inder vs. Bijai, 27 I.A. 209. (3) [1959] S.C.R. 713. the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has- reversed the original order or modified it or confirmed it.......... (1) [1963] 2 S.C.R. 563. It is this principle, viz., that the appellate order is the operative order after, the appeal is disposed of, which his in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation. The decision of the High Court was accordingly set aside by this Court. In Madan Gopal Rungla vs. Secretary to the Government of Orissa(1) which also involved a similar question relating to the territorial jurisdiction of the High Court, the appellant, Madan Gopal Rungta, filed an application for review to the Central Government against the order passed by the Government of Orissa rejecting his application for grant of a mineral lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single Judge had dismissed a Civil Revision Application filed by the tenant under section 115 of the Code of Civil Procedure, against a decree passed by the District Court, a Division Bench of the Bombay High Court entertained the tenant's writ petition under Articles 226 and 227 of the Constitution against the same decree and allowed it. The Bombay High Court had followed its earlier judgment in Sipahimalani's case(2) which had taken the view that an order passed by the lower court does not merge in the order passed by the revisional court because whereas a right of appeal is a vested right and an appeal is a continuation or rehearing of the suit, a revision is not continuation or re- hearing of the suit and it is not obligatory upon the revisional court to interfere with the order even if it is improper or illegal. This Court disapproved of that view and held following a judgment of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey(3) that the revisional jurisdiction is a part and parcel of the appellate jurisdiction of the High Court and therefore the principle of merger would apply to orders passed in the exercise of revisional jurisdiction also. In Somnath S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is clearly opposed the view taken by this Court in the decisions referred to above and the learned Judge was in error in making a distinction between an appellate judgment whereby an appeal is dismissed and an appellate judgment modifying or reversing the decree of the lower court. This distinction is unsound and is based on no discernible principle. Two more judgments of this Court must be noticed because the learned Judge has derived sustenance to his view from those judgments. Learned counsel for the respondent has also relied on them in support of his submission that in this case there can be no merger of the trial court's decree in that of the appellate court. The first of these cases is : The State of Uttar Pradesh v. Mohammad Nooh.(1) On April 20, 1948 the District Superintendent of Police passed an order of dismissal against the respondent Mohammad Nooh who was a head constable. The respondent filed an appeal to the Deputy Inspector-General of Police which was dismissed on May 7. 1949. He then filed a revision application to the Inspector-General of Police which was also dismissed on April 22, 1950. The respondent then filed a writ petition in the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay : 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. In that view of the matter the original order of dismissal passed on April 20, 1948, was not suspended by the presentation of appeal by the respondent nor was its operation interrupted when the Deputy Inspector-General of Police simply dismissed the appeal from that order or the Inspector-General simply dismissed the application for revision. The original order of dismissal, if there was no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities. This passage leaves no doubt that the judgment is based on the premise that the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t justify the view that in the instant case there can be no merger of the decree passed by the trial court in the decree of the High Court. The court, in fact, relied on Amritlal Bhogilal's case while pointing out that if the subject- matter of the two proceedings is not identical, there can be no merger. Just as in Amritlal Bhogilal's case the question of registration of the assessee firm was not before the appellate authority and therefore there could be no merger of the order of the Income-tax Officer in the appellate order, so in the case of Madurai Mills there could be no merger of the assessment order in the revisional order as the question regarding exclusion of the value of yarn purchased- from outside the State was not the subject-matter of revision before the Deputy Commissioner of Commercial Taxes. In the instant case the subject-matter of the suit and the subject-matter of the appeal were identical. The entire decree of the trial court was taken in appeal to the first appellate court and then to the High Court. The appellate order also shows that the appeal after being heard on merits, was dismissed with the modification that the res- pondent should vacate th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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