In the case of “Kunhayammedand others v/s. State of Kerala and another” (supra), it has been held that in spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. The expression “jeopardy” does not mean “not binding” or “not final” or “not effective”. That expression relates to danger of suffering harm or loss. As contended by Mr. Dessai, learned Senior Counsel, Judgment in jeopardy does not disturb its finality. Since no stay or suspension of the operation or execution of the judgment and award in L. A. Case No. 19/1989 or of the judgment in First Appeal No. 116/ 1997 and in LPA No. 15/ 2000 has been granted by the Apex Court, the same continues to be effective and binding as between the parties. The doctrine of merger is based on the principle that there cannot be more than one decree or operative order in respect of the same subject matter and at the same time. In so far as Sanyogita Rane group is concerned, they were parties to that L. A. Case No 19/89. In so far as Morajkar group is concerned, they had tried to intervene in the same proceedings when they were pending in the form of LPA No.15/2000, by filing an application for impleading them as parties. However, Morajkar group withdrew the said Civil Application No. 444/2006 on 09/06/2009. Under section 40 of the Evidence Act, previous judgments are admissible in support of a plea of res judicata in civil cases. If not res judicata, the principles analogous to that are applicable. In any case, the judgment in First Appeal No. 116/1997 was binding on the Reference Court wherein it was held that the land bearing survey no. 106 of Carapur village belongs to Manoramabai Rauji Rane Group. The Reference Court was therefore bound to rely upon the said findings and decide the subsequent case on the basis of the same findings and this is what has been done by the Reference Court. The judgment in the LPA No. 15/2000, being of Division Bench of this Court, is binding on me. In this judgment, it has been upheld that land bearing survey No. 106 of Carapur village belongs to Manoramabai Rauji Rane Group. It is not known as to how long the Special Leave Petition before the Hon'ble Apex Court would take for its final disposal. There is no point in keeping the present appeal pending till then. If the judgments are set aside in the said Special Leave Petition, Sanyogita Rane Group can take recourse to Section 144 of the Code of Civil Procedure.
BOMBAY HIGH COURT
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BOMBAY HIGH COURT
Mrs. Sanyogita Rane and Others Vs. Mrs. Manoramabai Rauji Rane (Since deceased) and Others
Judge : U.V. BAKRE
Decided On : May-11-2012
Case Number : First Appeal No. 105 of 2010 Alongwith Cross-Objection No. 11 of 2010
Citation;2013(7) ALLMR 633,2013(2) ABR 816
