Yogeshwar Dayal, J.
(1) This is a petition under Article 227 of the Constitution of India for quashing an order dated 29th January, 1963 passed by Shri M. S. Rohilla holding that the orders dated 25th April, 1978 passed by the trial Court during the pendency of the suit is not executable after the passing of the decree in Suit dated 26th April, 1978 and, thereforee, the application lor grant of police aid for execution of that order was not maintainable.
(2) For appreciating the facts of the case. it will be necessary to give some details to the nature of the suit and various orders passed by the learned trial Court culminating in the order dated 25th April, 1978.
(3) A license deed was executed by which a license was given jointly to Shri Lakhbir Singh and Sh. K. K. Khanna (since decreased), respondent Nos. 1 and 2 herein by the petitioner Sh. Rajeshwar Nath Gupta, for use of rooms 1 and 2 (combined) and room No. 3 on the first floor of premises; No. 8-A Block, Connaught Place, New Delhi (also known at Kashi House) with effect from 15-2-1971 at Rs. 631- per day. It was agreed that the petitioner will open the locks of the rooms in the morning. The rooms would be got cleaned by the petitioner. Respondent Nos. 1 and 2 would be allowed to use the said rooms for office work during the specified house and the premises would be locked by the petitioner in the evening and the keys would be kept by the petitioner. On 9th March, 1971 a company in the name of Skippers Travels International Private Limited (respondent No. 3) was incorporated and respondent Nos. 1 and 2 were its joint Managing Directors. Respondent Nos. 1 and 2 were carrying on travel agency business under the name of the said company and they were also doing other business in partnership in the said rooms 1 & 2 (combined) and 3 which they had be in allowed to use for office purposes'. The license was renewed from time to time during the period 15th December, 1971 to 31st May, 1984. The license was granted for the last time to respondent Nos. 1 and 2 for the use of the said rooms on 1st June, 1974. The period of license expired on 27th March, 1975. Thereafter Respondent Nos. 1 and 2 did not want to sign fresh license deed but insisting on using the rooms as before. Petitioner accordingly filed a suit on 9th May, 1975 to restrain respondent Nos. 1 and 2 from interfering with the possession of the petitioner and creating nuisance in the premises. This suit was registered as Suit NQ. 162 of 1975 and was assigned to the Court of Shri Dinesh Dayal, Sub Judge 1st Class, Delhi.
(4) Along with the suit, the petitioner also filed an application for grant of temporary injunction restraining respondents I and 2 from interfering with the petitioner's possession of the said rooms or demanding keys of the same from the petitioner or creating any nuisance in the premises by using abusive language or force.
(5) Even before the written statement could be filed, on 26th May, 1975, respondent Nos. 1 and 2 illegally broke open the locks of the petitioner on the two doors erf the said rooms. before any order on the above application for temporary injunction could be passed to show as if they were in possession.
(6) The petitioner accordingly on 30th May, 1975 filed an, application before the trial Court for restoration of status quo as it existed on the filing of the suit (Suit No. 162 of 1975).
(7) On 26th July, 1975, Shri Dinesh Dayal, who was dealing with the suit and the interim applications ordered respondent Nos. 1 and 2 to restore the premises in the same condition and to remove the locks put up by them during the pendency of the suit. The learned trial Court also felt that completely restraining respondents 1 & 2 from using the premises during the pendency of the suit would mean great hardship to them .and thereforee the trial Court felt that the respondents should not be completely prevented from using the premises and accordingly directed that respondents 1 and 2 will be entitled to use the premises. They were however directed to pay future charges at the agreed rate
(8) Aggrieved by this order, respondents 1 and 2 filed an appeal before the Senior Sub Judge, Delhi, but same was dismissed on 17th September, 1975.
(9) A revision petition against the said order was also brought to this Court and Prakash Narain, J. (as his Lordship then was) dismissed the revision petition by order dated 24th September. 1975 and upheld the orders of the learned trial Court and learned Senior Subordinate Judge.
(10) On dismissal of the revision petition, counsel for respondents 1 and 2 deposited a single set of keys erf the premises in the Court on 28th September, 1975. Since it was merely a single set of keys on 26th September, on the order of the trial Court, the bailiff removed locks of respondents 1 and 2 and put the locks of the petitioner on the premises.
(11) On 26th September, 1975 it was further directed by the trial Court that the user of the premises by respondents 1 and 2 will be restricted during the period from 8.00 a.m. in the morning till 8.00 p.m. On 27th January, 1976, this order was further amended and it was directed that the premises will be opened at 9.00 a.m. and closed at 7.00 p.m. on all working days except Saturday when it will be closed at 5.00 p.m. Thus uptill now, the Court was passing these orders on the supposition that the petitioner/plaintiff was in possession of the premises.
(12) On 22nd May, 1976 the petitioner also filed a suit for damages at enhanced rate than the contractual rate and this suit was registered as Suit No. 701 of 1976 and the damages in this suit were claimed for the period 21st January, 1976 to 19th May, 1976. This suit was also pending in the same Court where the other suit for injunction was pending.
(13) The trial then proceeded and the evidence of the parties had been recorded.
(14) Ft may be mentioned that the plaintiff had also partly dissatisfied with the orders of Sh. Dinesh Dayal dated, 26th July, 1975 filed an appeal which came up for disposal before the Additional Senior Sub Judge, Delhi and the Additional Senior Sub Judge while dismissing the appeal of the plaintiff directed that the suit should be disposed of within two months from the date the file of the suit is received by the trial Court.
(15) It would in these circumstances that the learned trial Court, Sh. Satnam Singh, Sub Judge 1st Class, Delhi, heard arguments day to day.
(16) On 24th April, 1978 when the petitioner after attending Court reached back the premises, he found that respondents 1 and 2 had repeated their action of 26th May, 1975, in complete disregard and violation of the Court orders as he again removed the locks of the petitioner[plaintiff as well as the eldrove on which the said lock was put and respondents had put their own embedded lock on the door and eldrove on the inner side in the other door.
(17) The plaintiff accordingly made another application dated 25th April, 1978 bringing this fact to the notice of the trial Court and sought the removal of the locks by respondents 1 and 2. This application came tup for hearing before Sh. Satnam Singh, Sub Judge, before whom the suit was also pending, on 25th April, 1978 and on the same date, the learned Sub-Judge directed issuance of warrants turn removal of locks of respondents 1 and 2 for 26th April, 1978 and the petitioner was allowed to put a fresh eldrove bolt on the door of the premises and put his own locks.
(18) The bailiff went to execute the warrants on 26th April, 1978.
(19) In the meanwhile, the trial Court on the assumption that the defendant/respondents' locks have been removed and the plaintiff/petitioner locks have been put up, the decreed the suit of the plaintiff for permanent injunction restraining respondents 1 and 2, with the possession of the petitioner plaintiff and enjoyment of the premises consisting of said three rooms.
(20) The respondents prevented the bailiff from executing the order and the bailiff failed to execute the order and felt apprehension of breach of peace. As stated earlier, in the meantime the trial Court decreed the suit of the plaintiff as prayed on the same date i.e. 26th April, 1978.
(21) On 29th April, 1978 the plaintiff/petitioner made an application for grant of police aid for execution the above order dated 25th April, 1978.
(22) Before this application dated 29th April, 1978 came up for hearing, it appears, that on 10th May, 1978 a suit was filed by M/s. Skipper Travels International Private Limited for injunction restraining the present petitioner from interfering with the alleged possession of the said Skipper Travels International Private Limited and/or executing the decree dated 26th April, 1978 passed by the trial Court and this suit was assigned to the Court of Shri Bharat Bhushan, Sub-Judge, 1st Class, Delhi, and the learned Sub Judge in this suit of M/s. Skipper Travels International Private Limited passed an ex-parte injunction order as per their claim.
(23) Respondent Nos. 1 and 2, who were defendants in the suit, also filed an appeal against the decree dated 26th April, 1978 and the learned Senior Subordinate issued an ex-parte order staying the execution of the decree. In view of these two orders, when the application for grant of police aia dated 29th April, 1978 came up for hearing before the executing Cotuit of Sh. Satnam Singh on 20th May, 1978, the learned Sub Judge stayed the execution proceedings .regarding the order dated 25th April, 1978 also and observed that the petitioner can apply for police aid when the appeal is decided.
(24) It may be mentioned that in the meanwhile on the same. date i.e. 26th April, 1978, the plaintiff suit for damages at enhanced rate was also decreed for the period 21-1-1976 to 19-5-1976 by Shri Satnam Singh, Sub-Judge, Delhi, as-well.
(25) On 29th November, 1978, the ex-parte stay order which was passed by the Court of Sh. Bharat Bhushan, Sub-Judge 1st Class, Delhi, was vacated and the appeal of M/S. Skipper Travels International Private Limited was also dismissed by the learned Additional District Judge on 7th July, 1979. Ultimately M/s. Skipper Travels International Private Limited got their suit dismissed for default in appearance in May, 1983. The appeal of respondents 1 and 2 against the judgment and decree of Sh. Satnam Singh dated 26th April, 1978 was also dismissed with costs by Sh. Mohd. Sharnim, Additional District Judge, Delhi by order dated 28th April. 1979.
(26) On 31st May, 1979, the petitioner again applied for police aid for executing orders dated 25th April, 1978. On this application on 2nd June, 1979, the executing Court ordered issue of fresh warrants for removal of locks as considerable time has elapsed and thereforee felt that there is no necessity of grant of police aid at this stage. What is material is that the Court directed' issue of fresh warrants removal of locks of respondents 1 and 2. On 7th July, 1979, the warrants were actually given to the bailiff and when the bailiff sought to execute the warrants on 9th July, 1979, the respondents resisted the execution of the warrants. This necessitated the filing of a third application for grant of police aid which was made by an application dated 13th July, 1979. Before this application 'could be disposed of, respondents I and 2 filed second appeals against the dismissal of their appeals by Sh. Mohd. Sharnim by order dated 28th April, 1979. The second appeals, in both the suits one relating to permanent injunction and other relating to damages, were came up before Leila Seth, J. and the learned Judge by order dated 30th April, 1980 dismissed both the appeals with costs. The learned Judge while disposing of these appeals, noticed at page 16 of the certified copy, 'further the courts below have found that the plaintiff is in possession. In fact, it appears that the plaintiff has been in possession all through except for a limited period during the pendency of the proceedings, when his possession was disturbed by defendants on 3rd May, 1975 till 4th September and for a day on 24th April, 1978 where after the possession was restored by the Court'. This observation was made by the learned Judge on the assumption that the plaintiff had succeeded in getting the order dated 25th April, 1978 executed and had been actually restored to possession. This was also the assumption of learned trial Court when it decreed the suit by judgment and decree dated 26th April, 1978 for permanent injunction. A Special Leave Petition against the judgment and order of Leila Seth, J. dated 30th April, 1980 was also dismissed by the Hon'ble the Supreme Court on 25th September, 1981.
(27) After the dismissal of the Special Leave Petition, the matter remained pending before the learned executing Court for practically 31/2 years and in the meantime respondent No. 2, Sh. K. K. Khanna, died and his legal representatives are now being represented before me, and M/s. Sikpper Travels International Private Limited filed objections to the issuance of warrants of possession and grant of police aid. In view of the objections, the learned executing Court framed the following issues : '1. Is the objector a tenant under the decree holder on the first floor in the disputed property as alleged in para 2 on merits and paras 1 and 2 of additional pleas OPO. 2. Whether objector has locked the premises or premises had been in continuously in possession of suit premises and, so, to what effect OPO. 3. Whether the objectors were not made parties in suit deliberately OPO. 4. Whether the effect of orders dated 25th April, 1978? Can they not be executed. 5. Is the decree-holder entitled to police aid ODH. 6. What is the effect of regular civil suit pending in Court of Sh. R. N. Jindal OPO. 7. Whether the application for police aid is maintainable? 8. Relief.'
(28) Another issue being issue No. 5-A was also framed on 9th January, 1981 which is as under : 5-A Whether the averments made in paras 2 to 10 of reply of Objector in additional pleas have been heard and decided finally If so, to what effect I ODH.
(29) All the issues were found in favor of the petitioner and all the objections of respondents No. 1 and 2 and respondent No. 3 were dismissed but on crucial issue Nos 4 and 5, learned executing Court took the view that in view of the decree for permanent injunction dated 26th April, 1978, since the operative part of the order of 25th April, 1978 was not in corporate in the decree, that order of 25th April, 1978 ceases to be executable and could not be executed and, thereforee, no question arose for grant of police aid. It also gave a finding that all interlocutory orders including the order dated 25th April, T978 merged in the final decree and were not executable separately and independently. In support of his view, he relied upon the decision of Bhimiah P. of Mysore High Court in the matter Shivaraya and Others vs. Sharnappa and Others A.I.R. 1968 Mys 283 (1).
(30) The petitioner filed an appeal against this order of Sh. M. S. Rohilla dated 29th January, 1983 in the Court of Senior Subordinate Judge, where objection was taken to the maintainability of the appeal. Whereupon the petitioner filed the present petition before this Court impugning the order of Sh. M.S. Rohilla under Article 227 of the Constitution of India.
(31) Before I deal with the merits of the petition, I may deal with the preliminary objection raised by learned counsel for respondent Nos. 1 and 2 respondent No. 3.
(32) The abjection took this form.
(33) The petitioner having availed of the remedy of appeal could not pursue the present remedy under Article 227 of the Constellation of India. If an alternative remedy of appeal lay, the petitioner could not resort to Article 227 of the Constitution of India. It is also submitted that a remedy under Section 115 of the Code of Civil Procedure was available, thereforee, remedy under Article 227 of the Constellation of India was barred.
(34) It will be noticed that the order for refusal of grant of police aid is not an appealable order, thereforee, the remedy being pursued by way of appeal is meaningless. However, the remedy under Section 115 of the Code of Civil Procedure is available to the petitioner because there is no other remedy of appeal available, provided the impugned order suffers from jurisdictional infirmity within the meaning of Section 115 of the Code of Civil Procedure. The police bid has been declined on the grounds : (1) that the order dated 25th April, 1978 ceased to be executed and has merged with the decree dated 26th April, 1978, and (2) that the order by itself was not executable after disposal of the suit. If it is held that the impugned order is executable then it is an jurisdictional infirmity and consequently a revision under Section 115 of the Code of Civil Procedures lies. If remedy under Section 115 of the Code of Civil Procedure is available, there is no ground of taking recourse to proceedings under Article 227 of the Constitution. of India.
(35) In the present case, as stated earlier that the impugned order was pressed on 29th January, 1983 and certified copy was applied on 10th February, 1983 and the same was ready on 6th july, 1983 and the present petition under Article 227 of the Constitution of India was filed on 11th August, 1983. thereforee there is no difficulty in treating this petition as being one under section 115 of the Code of Civil Procedure. I would accordingly treat this petition under Section 115 of the. Code of Civil Procedure in view of the objection of the respondents.
(36) Having treated as a revision petition, the question still arose whether the impugned order is of a nature which merges in the final decree or is an interim interlocutor order of the nature which does not merge and remains executable by its own force.
(37) It will be noticed that the suit of the plaintiff against respondents 1 and 2 was on the basis that they were in possession. The suit was also decreed on that basis. In fact, even in the second appeal the High Court assumed that the order of the trial Court dated 25th April, 1978 had been executed and the plaintiff had been restored back the possession. The question whether an interlocutory order is merged in the final decree depends on the nature of the order. There is no universal rule that every interlocutory order lapsed with the passing of the final decree or that it merges with it. This question for doctrine of merger came up before the Supreme Court in the matter State of Madras vs . Madurai Mills Co. Ltd. : 1SCR732 (2) and the Supreme Court speaking through Ramaswami, J. held that '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 inferior authority and the other by a superior authority 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. 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'.
(38) The doctrine of meger as explained by the Supreme Court would be equally applicable to certain interlocutory orders of various natures which are passed from time to time during the pendency of the case.
(39) As found by the learned trial Court and held right till the High Court, the plaintiff/petitioner was held to be in possession at the time of the institution of the suit. He was once dispossessed during the pendency of the suit, and the possession was restored through Court. The learned trial Court had to comply with the orders of the superior Court to finish the case within two months and being time bound, had decreed the suit of the plaintiff after considering the entire material on record on 26h April, 1978.
(40) The plaintiff had been dispossessed only on 24th April, 1978 and the order having passed by the trial Court for restoration of that possession by issuance of warrant of possession, the trial Court assumed, so also the learned Singh Judge of this Court, that the possession had been restored and it was on that basis that the decree had been passed in favor of the plaintiff.
(41) Respondent Nos. 1 and 2 never took the position that the possession was not restored and thereforee till the possession is restored, suit was not maintainable.
(42) Had the suit been dismissed for permanent injunction, I would have assumed that this order of delivery of possession has merged with the final decree of the dismissal of the suit. But when the suit of the plaintiff has been decreed, it cannot be said that the plaintiff will be in worse position than he was before the filing of the suit. The decree when it was passed, was passed on the basis of the facts when the suit was filed.
(43) Under these circumstances I am of the firm view that the order dated 25th April, 1978 is of such a nature that it did not merge in the final judgment and decree dated 26th April, 1978.
(44) I am in complete agreement with the decision of Bhimiah, J. of Mysore High Court in the aforesaid case of Shivaraya and others vs. Sharnappa and others : Air 1968 Mysore 283(1) on which the learned trial Court has relied upon. This case has no applicability at all with the present case. In that case the plaintiff had filed an application for interim relief under Order 39, rules 1 and 2 but the prayer was rejected by the trial Court. The plaintiff went up in revision to the High Court and the High Court passed an interim order for temporary injunction as prayed for by the plaintiff. In the revision itself, an application was filed by the defendant for vacation of the interim order passed by the High Court. The High Court passed the order directing defendant to take possession of the property and to withdraw the amount in deposit after giving security to the satisfaction of the Lower Court and thereby dissolved the ad interim order passed in favor of the plaintiff. The revision petition was still pending. Later on the revision petition was allowed by the High Court and the trial Court was directed to consider whether the temporary injunction order passed by the High Court should or should not be vacated. When the matter went to the trial Court, the defendant applied for execution of the interim order which had been passed in his favor by the High Court. Bhimiah, J. rightly held that when the result. of the revision petition itself has gone against the defendant, the interim order passed during the pendency of the revision petition also disappeared, because the final order which was passed in the revision petition is against the defendant. This case has no relevancy at all with the present case.
(45) There is another aspect of the matter. No party can be allowed to suffer by the mistake of the Court. All along the Court while giving judgment was under he assumption that the plaintiff was in possession. The Court was under the assumption that the orders dated 25th April, 1978 have been complied with. Had it known the fact that respondents 1 and 2 have successfully flouted that order, they would have given further directions in the decree for restoration of the possession.
(46) If there is any doubt that the order would cease to exist once a final decree has been passed, I would suo moto. in exercise of inherent powers of this Court, direct amendment of the decree dated 26th April, 1978 passed by the Court of Sh. Satnam Singh, Sub Judge 1st Class, Delhi, in the afore-said suit and make the order dated 25th April, 197.8 also part of the decree.
(47) It is stated in the petition that after the passing of the order dated 25th April, 1978 and 29th January, 1983, the respondents have removed one door of the premises and put up an aluminium frame door with glasses and a roller shutter in front of it and another shutter in front of another door. The order dated 25th April, 1978 can be; executed by removing all the locks, doors and shutters.
(48) I would accordingly accept this revision petition and hold that the order dated 25th April, 1978 is executable and the petitioner is entitled to police aid. I would also direct issuance of warrants of possession of the aforesaid rooms by removing all the locks, doors and shutters on the aforesaid premises and also direct the grant of necessary police aid to effectively put the plaintiff in possession. The District Judge, Delhi, is accordingly directed to requisite necessary police force to execute the warrants, of possession.