CHANDRACHUD, J. In this appeal by special leave from the
judgment of a learned single Judge of the High Court of
Calcutta, two questions are raised for our consideration on
behalf of the appellants who have obtained against the
respondent a decree for eviction: (1) whether the decree of
the trial court has merged in the decree of the High Court
and (2) whether by reason 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
396
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 Division Bench of the High Court
of Calcutta on January 8, 1969. While dismissing the
appeal, the High Court granted to the respondent time to
vacate the suit premises till the end of January, 1970 on
the respondent giving a written undertaking to the court
that he will hand over quiet and peaceful possession of the
premises to the appellants on the expiry of the aforesaid
period.
The West Bengal Premises Rent Control (Temporary Provisions)
Act, 1950 was repealed by section 40 of the West Bengal.
Premises Tenancy Act, XII of 1956. During the Proclamation,
of emergency issued by the President of India on February
20, 1968, Act XII of 1956 was amended by the West Bengal
Premises Tenancy (Amendment) Act, President's Act 4 of 1968,
which was given retrospective effect from August 26, 1967.
After the cessation of the emergency, 'the West Bengal
legislature passed the West Bengal Premises Tenancy
(Amendment) Act, 1969 with a view to re-enacting with
modification President's Act 4 of 1968.
In between the decree for possession passed by the High
Court in the appellants' favour on January 8, 1969 and the
expiry of the period allowed to the respondent to vacate the
premises, several amendments were made to the West Bengal
Premises Tenancy Act, XII of 1956, ("The Act of 1956") by
the West Bengal Premises Tenancy (Second Amendment) Act,
1969 ("The Act of 1969") which came into force on November
14, 1969. We are concerned in this appeal with the
provisions of section 17 D which was introduced in the Act
of 1956 by the Act of 1969. That section, in so far as
material, reads thus:
"17 D. Power of Court to set aside, decrees passed on
account of default in the payment of rent.
(1) Where before the commencement of the
West Bengal Premises Tenancy (Amendment) Act,
1968, a decree for the recovery of possession
of any premises was passed-
(a)
(b) in a suit under the West Bengal Premises
Rent Control (Temporary Provisions) Act, 1950,
by reason only of clause (i) of the proviso to
subsection., (1) of section 12 of that Act,
but the possession of such premises had not
been recovered from the tenant by the
execution of the decree, the tenant may within
a period of sixty days from the date of
commencement of the West Bengal Premises
397
Tenancy (Second Amendment) Act, 1969, make an
application to the Court which passed the
decree to set aside the decree.
Explanation:-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 Premises, the respondent made an
application under section 17 D Asking that the decree for
possession passed Against him be set aside.' By a judgment
dated July 15, 1970 the learned Munsif, Second Court,
Alipore, dismissed that application on the ground that the
decree for possession passed by the trial court on November
24, 1958, had merged in the decree passed by the High Court
on January 8, 1969, that in truth and in substance the
operative decree was the one passed by the High Court and as
that decree was, passed after August 26, 1967, being the
date of the commencement of the West Bengal Premises Tenancy
(Amendment) Act, 1968, the application filed by the
respondent under section 17 D of the act of 1956 was not
maintainable.
The respondent filed a revision application in the High
Court of Calcutta against the judgment of the learned
Munsif. By a judgment dated May 31, 1971 a learned single
Judge of the High Court allowed the revision application,
granted the application filed by the respondent under
section 17 D and directed the dismissal of the suit. The
learned Judge has taken the view that in case where, an
appellate, court dismisses the appeal, the principle of
merger of the decree of the lower court with that of the
appellate court has no application and therefore the
effective decree in the case was the one passed by the trial
court on November, 24, 1958 which was before the
commencement of the President Act 4 of 1968. This Court has
granted to the appellants special leave to appeal, from the
judgment of the High Court.
398
it is not in dispute that the decree dated November 24, 1958
for possession of the suit premises was passed by the trial
court in a suit filed by the appellants' predecessors-in-
interest under the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950, by reason only of clause
(1) of the proviso to sub-section (1) of section 12 of that
Act, that is to say, on the ground that the respondent had
defaulted in the payment of rent. Clause (b) of section 17
D(1) is therefore complied with.
The question which arises for consideration is whether the
decree for the recovery of possession can be said to have
been passed against the respondent "before the commencement
of the West Bengal Premises Tenancy (Amendment) Act, 1968",
that is, before August 26, 1967. If it was passed before
that date, the respondent would be 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 may be
sought in the principle that there cannot be, at one and the
same time. more than one operative order governing the same
subject-matter. Therefore the judgment of an inferior
court, if subjected to an examination by the superior court,
ceases to have existence in the eye of law and is treated as
being superseded by the judgment of the superior court. In
other words, the judgment of the inferior court loses its
identity by its merger with the judgment of the superior
court.
Stated in this form the principle may appear to be
unexceptionable but the problem has many facets. What, if
the higher court dismisses the proceeding before it
summarily without a speaking order? Does the judgment of
the lower court still merge in the unspeaking order of the
higher court? What, if the powers of the higher court are
invoked in the exercise of its revisional and not appellate
jurisdiction? Does a judgment or an order passed in the
exercise of a severally restricted jurisdiction like that
under section 115 of the Code of Civil
39 9
procedure wipe out of existence a decree or order passed in
the exercise of a wider jurisdiction as may be exercised by
a court possessed of a suit ? Does it make any difference to
the application of the doctrine of merger that the nigher
court has not modified or reversed the judgment of the lower
court but has merely affirmed it? These nuances had once
raised issues on which conflicting views were expressed by
the courts. Over' the years, the area of conflict has
considerably narrowed down and most of the problems touched
by us have been. resolved by this Court.
It is only proper that we keep ourselves within the bounds
of the issue arising in the case. We are not concerned to
determine whether a decree passed in a suit can merge with
an order passed in the exercise of revisional jurisdiction
because the decree of the trial court in the instant case
was challenged first by an appeal filed in the District
Court and than is a Second Appeal filed in the High Court.
We are also not concerned to determine whether the decree
passed by a trial court can merge in an unspeaking order
passed by the higher court while summarily dismissing the
proceeding because the High Court has given a considered
judgment after a contested hearing. The Principle,
therefore, that there is no decree as such of the appellate
court if it dismisses the appeal 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 to remain outstanding would be but an
empty exercise of the beneficent power given by the section.
Therefore, the power to set aside the decree for possession
must be construed to mean a power to set aside the decree
which can be put into execution. The decree which affects
the rights of the defendant is the decree which is capable
of execution for it is in that decree that the rights and
obligations of the parties are crystallised.
Section 17 D in terms speaks of the power of the court to
set aside "a decree for the recovery of possession of any
premises" if, "the possession of such premises had not been
recovered from the tenant by the execution of the decree".
The decree to be set aside is thus that
400
decree which is capable of execution and in execution of
which the landlord has not yet obtained possession of the
premises. What is important for the purposes of section 17D
is to find which is the decree capable of execution. The
section enables the judgment-debtor to "make an application
to the Court which passed the decree to set aside the
decree", provided that where the decree is passed in the
exercise of appellate jurisdiction, an application for
setting aside the decree may be made to the Court of first
instance. By sub-section (2) of section 17 D, if an
application is made for setting aside a decree, "all
proceedings in execution of the decree shall remain stayed
until the application is disposed of". This provision
emphasis what is clear from the other provisions of the
section that the concern of the law is to arm the court with
the power to set aside the operative decree by executing
which alone the judgment-creditor could obtain teal and
effective relief.
In cases where the decree of the trial court is carried in
appeal and the appellate court disposes of the appeal after
a contested hearing, the decree to be executed is the decree
of the appellate court and not of the trial court. In Jowad
Hussain vs. Gendan Singh & Ors.,(1) the, Privy Council
while holding that the limitation of three years within
'which an application for a, final decree must be made runs
fromthe date of the decree of the appellate court, quoted
with approvalthe statement of law contained in the
judgment of a learned judge of the Allahabad High Court
to the following effect : "When an appealhas been
preferred, it is the decree of the Appellate Court which is
the final decree 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 of this very principle yields the result that
if the court of appeal confirms, varies or reverses the
decree of the lower court, the decree of the appellate court
is the only decree that can be amended(4), or that the
limitation for executing a decree runs from
(1) 53 I.A. 197.
(2) Per Banerji J. in Gajandhar Singh v. Kishan Jiwan Lal
I.L.R. 39 All. 641
(3) Bhup Inder v. Bijai, 27 I.A. 209. (4) Brij Narain v.
Tejpal; 37 I.A. 70,
401
the date of the decree capable of execution and that is the
decree of the appellate court which supersedes that of the
court of first instance(1); or that if mesne profits are
ordered from the date of suit until the expiry of three
years after the date of the decree, the decree to be
considered is the decree capable or execution so that if the
decree of the trial court is confirmed. in appeal, three
years will begin to run from the date of the appellate
decree.(2)
The decree, therefore, which section 17 D empowers the court
to set aside is the decree which is capable of execution
which, in this case, is the decree passed by the High Court
on January 8, 1969.
The fundamental reason of the rule that where there has been
an appeal, the decree to be executed is the decree of the
appellate court is treat in such cases the decree of the
trial court is merged in the decree of the appellate court.
In course of time, this concept which was originally
restricted to appellate decrees on the ground that an appeal
is a, continuation of the suit, came to be gradually
extended to other proceedings .like. Revisions- and even to
proceedings before quasi judicial and executive authorities.
it will now be appropriate to refer to the decisions bearing
on the principle of merger.
In Commissioner of Income-tax Bombay vs. M/s.
Amritlal Bhogilal & Co.,(3) the question which arose for
decision was whether the order passed by the Income-tax
Officer allowing the registration of a firm merged in the
order passed by the Appellate Assistant Commissioner in the
appeals filed by the firm against the order of assessment.
If it did, the Commissioner of Income-taX could not in the
exercise of his revisional powers under section 33B(1) set,
aside the order of registration passed by the Income-tax
Officer. This Court held on the merits, of the matter that
though the appellate order of the Appellate Assistant
Commissioner was the only order which was valid 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.
402
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."
Collector of Customs, Calcutta vs. East India Commercial
Co. Ltd.,(1) is a typical example of that class of cases in
which prior to the amendment of Article 226 of the
Constitution by the insertion of clause IA, the High Courts
were faced with the question whether a writ could issue
against an authority whose seat was situated beyond the
territorial jurisdiction of the High Court. The respondent
led a writ petition in the Calcutta High Court against the
decision of the Central Board of Revenue which had dismissed
his appeal. A Full Bench of the High Court held that though
it had no jurisdiction to issue a writ against the Central
Board of Revenue which was permanently located outside its
territorial jurisdiction, the Board having merely dismissed
the respondent's appeal against the order passed by the
Collector of Customs, the real effective order was that of
the Collector whose seat was located within the jurisdiction
of the High Court and therefore a writ could issue as
against him. After referring to the decisions of the High
Courts of Allahabad, Nagpur, PEPSU and Rajasthan which had
taken the view that the order of the original authority
merges in the appellate order even when the appellate
authority dismisses the appeal without any modification of
the order appealed against, Wanchoo J. speaking for the
Constitutional Bench observed thus:
"The question therefore turns on whether the
order of the original authority becomes.
merged in the order of the appellate authority
even where the appellate authority merely
dismisses the appeal without any modification
of the order of the original authority. It is
obvious that when an appeal is made, the
appellate authority can do one of three
things, namely, (i) it may reverse the order
under appeal, (ii) it may modify that order,
and (iii) it may merely dismiss the appeal and
thus confirm the order without any
modification. It is not disputed that in the
first two cases where the order of the
original authority is either reversed or
modified-it is the order of the appellate
authority which is the operative order and if
the High Court has no jurisdiction to issue a
writ to the appellate authority it cannot
issue a writ to the original
authority.......... It seems to us
that on
principle it is difficult to draw a
distinction between the first two kinds of
orders passed by the appellate authority and
the third 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.
403
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 lease. The judgment of this Court affirming
the view of the High Court that it had no jurisdiction to
issue a writ against the Central Government undoubtedly
based on the terms of Rule 60 of the Mineral Concession
Rules, 1949 under which whenever a matter is brought to the
Central Government it is its order which is effective and
final; but it was observed that "where there is a review
petition and the Central Government passes an order on such
petition one way or the other it is the Central Government's
order that prevails and the State Government's order must in
those circumstances merge in the order of the Central
Government" (p. 914).
The principle that the decree of the trial court merges in
the decree of the appellate court was held to be applicable
in U.J.S. Chopra v. State of Bombay(2) to orders passed in
criminal proceedings. In that case the High Court dismissed
summarily an, appeal filed by an accused against his
conviction and sentence. Thereafter, the State of Bombay
filed an application in the High Court for enhancement of
the sentence. While holding that the summary dismissal of
the appeal preferred by the accused did not preclude him
from taking advantage of the provisions of section 439(6) of
the Code of Criminal Procedure and showing cause against his
conviction when he was subsequently called upon to show
cause why the sentence imposed on him should not be
enhanced, Bhagwati and Imam JJ. observed :"A Judgment
pronounced by the High Court in the exercise of its
appellate or revisional jurisdiction after issue of a notice
and a full hearing in the presence of both the
parties........ would replace the judgment of the lower
Court, thus constituting the judgment of the High Court the
only final judgment to be executed in accordance with law by
the Court below." (pp. 133-134). Das J. agreed with the
conclusion of the majority as regards the right of the
accused to challenge the conviction under section 439(6) but
he went a step further and said that there is a merger or
replacement of the judgment of the lower court whenever the
High Court disposed of the appeal or revision
(1) [1962] Supp. (3) S.C.R. 906.
(2) [1955] 2 S.C.R. 94.
404
and that "it makes no difference whether the dismissal is
summary or otherwise". (p. 118).
An interesting question arose in Shanker Ramchandra
Abhyankar v. Krishnaji Dattatryaya Bapat(1) where after a
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 Sahu v. The State of Orissa and others ( 4 )the
principle of merger was extended to an executive order
dismissing a Government servant. The appellant in that case
was dismissed by an order passed by respondent No. 4, the
Indian Aluminum Company Ltd., Calcutta. The appeal filed by
the appellant to the State Government was dismissed on
January 2, 1962. The appellant thereafter moved the Orissa
High Court under Article 226 of the Constitution asking that
the orders passed-by the, State Government and respondent
No. 4 be quashed, on the ground that no notice was given to
him for misconduct and no inquiry was held by respondent No.
4 into the alleged misconduct before passing the order of
dismissal. This Court assumed in favour of the appellant
that the order passed by respondent No. 4 was illegal but it
held that it merged in the appellate order of the State
Government dated January 2, 1962 and unless the order of the
State Government was shown to be defective, the appellant
would not be entitled to any relief. Speaking on behalf of
the Court Ramaswami J, observed "There can no doubt that if
an appeal is provided by a statutory rule 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 it. In law the position would be just
the same even if the appellate decision merely confirms 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 is subsisting and is operative and capable of
enforcement."
The learned Judge of the High, Court has referred to some of
these decisions in his judgment but he took the view -"I am
of opinion that
(1) [1970] 1 S.C.R. 322.
(2) 58 B.L.R. 344.
(3) 59 I.A. 283, 297.
(4) [1969] 3 S.C.C. 384.
405
in cases where the appellate court merely dismisses the
appeal, the principle of merger have no application in cases
of execution of the original decree except as to limitation
and will not affect an executable decree passed by an
inferior court, in so far as its execution is concerned. The
position would be otherwise if the decree is modified or
varied by such appellate authority as, in such event, the
original decree, will be in executable.", This conclusion 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 Allahabad under Article 226 of the
Constitution praying that the order of dismissal be set
aside. The High Court granted the writ on the ground that
the violation of the rules of natural justice and fair play
rendered the order of dismissal illegal. In an appeal by
the State of U. P., this Court held by a majority that
Article 226 of the Constitution is not retrospective and the
High Court could not exercise its powers under that Article
226 to quash the order of dismissal passed before the com-
mencement of the Constitution.
It was contended before this Court on behalf of the
respondent Mohammad Nooh that the order of dismissal dated
April 20, 1948 had merged in the order passed on appeal on
June 7, 1949, that both these orders merged in the order
passed by the Inspector-General of Police on April 22, 1950
and since the order last mentioned was passed after the
Constitution had come into force, the High Court had
jurisdiction to issue, the writ under Article 226. This
contention was negatived by the court on two grounds :
Firstly, that though departmental authorities holding an
inquiry into charges made against an employee have the
trappings of courts of law, they cannot be- compared with
regular courts manned by persons trained in law and
therefore the order of dismissal, the order passed in appeal
and the order passed in revision "can hardly be equated with
any propriety with decrees made in a civil suit under the
Code of Civil Procedure; secondly, that 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
(1) [1958] S.C.R. 595.
406
order passed in revision, it does so only for certain
purposes, namely. for the purposes of computing the period
of limitation for execution of the decree as in Batuk Nath
v. Mune Dei,(1) or for computing the period of limitation
for an application for final decree in a mortgage suit as in
Jowad Hussain v. Gendan Singh.(2)"
The observations last quoted from the Judgment of Das C. J.
do lend support to the contention of the respondent that the
principle of merger has, at best, a limited application but
we are of the view that the observations are evidently made
in the context of the peculiar facts of the case and their
application ought not to be extended beyond those facts.
After making the observations extracted above., Das C.J.
proceeded to say : "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 original order of dismissal
was operative on its own strength and that since that order
was passed prior to the Constitution, the High Court had no
jurisdiction to set it aside under Article 226. In Madan
Gopal Vs. Secretary to the Government of Orissa(3) a
Constitution Bench of this Court held that "the facts in
Mohammad Nooh's case were of a special kind" and therefore
the reasoning in that case would not apply to the facts of
the case before the Constitution Bench to which we have
already made a reference. In Collector of Customs, Calcutta
vs. East India Commercial Co. Ltd.,(4) the same
Constitution Bench reiterated that Mohammad Nooh's case was
a special case which stands on its own facts". As observed
in that decision, even if the principle of merger were
applicable the fact would still have remained that the dis-
missal of Mohammad Nooh was prior to the Constitution and
therefore he was not entitled to take advantage of the
provisions of the Constitution.
The other decision on which the respondent relies is State
of Madras vs. Madurai Mills Co. Ltd. (5) It was held in
that case that the order of assessment dated November 23,
1952, had not merged in
(1) [1914] L.R. 41 I.A. 104.
(2) [1926] L.R. 53 I.A. 197.
(3) [1962] Supp. (3) S.C.R. 906.
(4) [1963] 2 S.C.R. 563.
(5) [1967] 1 S.C.R. 732.
407
the revisional order dated August 21, 1954 passed by the
Deputy Commissioner of Commercial Taxes "because the
question of exemption on the value of yarn purchased from
outside the State of Madras was not the subject-matter of
revision". The attention of the Court was drawn to
Anzritlal Bhogilal's case(1), to which we nave already
referred, but Ramaswami J. who spoke for the Court said :
"But the doctrine of merger is not a doctrine of rigid and
universal application and it cannot be said that wherever
there are two orders, one by the interior Tribunal and the
other by a superior Tribunal, passed in an appeal or
revision, there is a fusion or merger of two orders
irrespective of the subject-matter of the appellate or
revisional order and the scope of the appeal or revision
contemplated by the particular statute. In our opinion, the
application of the doctrine depends on the nature of the
appellate or revisional order in each case and the scope of
the statutory provisions conferring the appellate or
revisional jurisdiction." These observations cannot 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 the premises by the end of January,
1970. The decree of the High Court dated January 8, 1969,
reads thus :
"It is ordered and decreed that the decree of
the court of appeal below be and the same is
hereby affirmed and this appeal dismissed
subject to this that the defendant appellant,
having duly filed the stipulated undertaking,
through his, learned Advocate, is allowed time
till the end of January, 1970, for vacating
the disputed premises and delivering up quiet
and peaceable possession thereof to the
decree-holder respondent on condition that the
said defendant appellant deposits in the trial
court, to the credit of the decree-holder
respondent, within two months from this date,
the outstanding arrears, if any, on account of
rents or mesne profits, as the case may be,
and also goes on depositing, in the same court
to the same credit, month by month, regularly,
according to the English calendar., within the
15th of the next succeeding month according to
the same calendar, a sum of
(1) [1959] S.C.R. 713.
8-177 Sup CI/75
408
Rs. 175/- (Rupees one hundred and seventy
five) per month, on account of current rents
or mesne profits.
And it is further ordered that in the event of
the said defendant's failure to make any of,
the above deposits, this, decree shall become
executable at once."
We, are accordingly of the opinion that the decree of the
trial court dated November 24, 1958 merged in the decree of
the High Court dated January 8, 1969. Since the decree. of
the High Court was passed after the commencement of the West
Bengal Premises Tenancy (Amendment) Act 1968, that is to say
after August 26, 1967, section 17D of the Act of 1956 can
have no, application and therefore the decree of the High
Court which is the only decree to be executed cannot be set
aside under that section.
We therefore allow the appeal, set aside the judgment of the
High Court dated May 31, 1971 and restore that of the
Munsif, Second Court, Alipore dated July 15, 1970. The
respondent shall pay to the appellants the costs of this
appeal and of the Revision before the High Court.
S. C.
