Research › Browse › Judgment

Allahabad High Court · body

1963 DIGILAW 187 (ALL)

Girwar v. Sarupa

1963-08-09

R.S.PATHAK

body1963
JUDGMENT R.S. Pathak, J. - This appeal by the judgment-debtor arises out of execution proceedings. 2. Kapuri mortgaged five agricultural plots with the respondent Sarupa some time before 1950. Sarupa continued as a mortgagee in possession of these plots, but upon interference with his possession by the appellants, Girwar and others, he instituted suit No. 461 of 1950 on November 7, 1950 for an injunction restraining them from interfering with his possession. The suit was decreed on February 16, 1952, and an appeal against that decree was disputed on March 3, 1953. It seems that two or three months after the decree was passed for permanent in-junction, the appellant dispossessed the respondent. It appears from the judgment under appeal that this act of dispossession took place in 1358F but from the statement of counsel for Sarupa recorded by the trial court it is apparent that Sarupa was dispossessed in April or May 1952. Thereafter Sarupa filed suit No. 478 of 1952 for possession of the agricultural plots, but the suit was dismissed on September 30, 1953. Sarupa then made an application under Order 21, R. 32, C, P. C. on May 24, 1957 stating that the appellant had disobeyed the decree for permanent injunction by interfering with his possession and forcibly ejecting him, and therefore, the decree should be enforced by attachment of their property and by committing them to civil prison. It is this application which has given rise to the present appeal. 3. The appellants preferred an objection to the application contending that they had been in possession for more than three years and the application was barred by limitation. It was also urged that as from July 1, 1952, when the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 had been brought into force, Sarupa as mortgagee had no rights left in the agricultural plots, the mortgagor being entitled to possession. 4. The executing court dismissed the objection of the appellants, but upon appeal the learned District Judge, Bulandshahr, remanded the case with a direction that the executing court should consider the effect of the U.P. Zamindari Abolition and Land Reforms Act and of the proceedings taken under the U.P. Consolidation of Holdings Act. 4. The executing court dismissed the objection of the appellants, but upon appeal the learned District Judge, Bulandshahr, remanded the case with a direction that the executing court should consider the effect of the U.P. Zamindari Abolition and Land Reforms Act and of the proceedings taken under the U.P. Consolidation of Holdings Act. Upon remand, the executing court came to the finding that the application was not barred by limitation but that on account of the provisions of the U.P. Zamindari Abolition and Land Reforms Act and of the U.P. Consolidation of Holdings Act the mortgagee rights of Sarupa had been extinguished and the application was not maintainable. 5. An appeal was then filed by Sarupa which was allowed by the learned second Additional Civil Judge, Bulandshahr. The learned Judge has held that the application under Order 21, R. 32 of the Code was governed by the provisions of Article 182 of the Indian Limitation Act, and because of the amendment to that Article by the U.P. Civil Laws (Reforms and Amendment) Act enlarging the period of limitation from three years to six years the application was within limitation. In the alternative he held that there was no period of limitation prescribed for an application of this nature. On the question whether the rights of Sarupa in the plots had been extinguished, he was of the view that if the mortgagor entered into possession, Sarupa had no rights to assert against him, but against dispossession by a third party he was entitled to the protection of his mortgagee rights, that as it was not the mortgagor but the appellants who had dispossessed Sarupa the latter was entitled to maintain the application in question. Upon the application of the U.P. Consolidation of Holdings Act the learned Judge held that the allotment of plots upon the appellants in the consolidation proceedings could not confer any title on them as they were trespassers. 6. The judgment-debtors now appeal to this Court, Two points have been urged for the appellants. It is contended that the application is barred by limitation, the provision applicable being Article 181 and not Article 182 of the First Schedule to the Indian Limitation Act. In my judgment, there is force in this contention. Article 182, which was applied by the lower appellate court, cannot be invoked. It is contended that the application is barred by limitation, the provision applicable being Article 181 and not Article 182 of the First Schedule to the Indian Limitation Act. In my judgment, there is force in this contention. Article 182, which was applied by the lower appellate court, cannot be invoked. It provides a period of limitation for the execution of a decree which is capable of execution from the date on which it is passed. A decree for permanent injunction cannot be executed as soon as it is passed, but must await execution upon disobedience of the injunction. As was observed by the Madras High Court in Rungiah Gounden & Co. v. Nanjappa Row and others, I.L.R. (1903) XXVI Mad. 780. "In the case of a decree for perpetual injunction there may be nothing enforceable at the date of the decree and the disobedience itself may take place more than three years after the date of the decree." The period of limitation under Article 182 begins to run from the date of the original decree or order, of the appellate decree or order, the date of the order of review or the date of amendment, as the case may be. It is apparent that the provision can apply only to a case where execution can be taken out immediately upon the passing of the decree or order. If this were not so, the judgment-debtor could wait for three years after grant of the permanent injunction; and the period for executing the decree having lapsed, could then disobey the permanent injunction. If Article 182 lends itself to this interpretation, a clever judgment-debtor could deprive the decree-holder of the fruits of his decree by embarking upon the disobedience of the permanent injunction after the period of limitation had expired. I am firmly of the view that Article 182 cannot apply to a case such as this. 7. There is no period of limitation specifically prescribed for the enforcement of a decree for permanent injunction by an application under Order 21 rule 32 of the Code, and consequently the provisions of Article 181 will apply. The period of limitation is three years from the date when the right to apply accrues, and in the case of a decree for permanent injunction the right to apply for its enforcement accrues when it is disobeyed by the judgment-debtor. The period of limitation is three years from the date when the right to apply accrues, and in the case of a decree for permanent injunction the right to apply for its enforcement accrues when it is disobeyed by the judgment-debtor. I am supported in my conclusion by the decision of the Judicial Committee in Rameshwar Singh v. Homeshwar Singh, A.I.R. 1921 P.C. 31 Venkatachalam Chetty v. Veerappa Pillai, I.L.R. (1906) XXIX mad. 314 Shyam Sunder v. Ramdas Singh, AIR 1946 Patna 392 and Moti Ram v. Hans Raj, A.I.R. 1935 lah. 702. 8. Learned counsel for the respondent urged that there was no period of limitation for an application under Order 21 rule 32 of the Code, that the provisions of Sec. 23 of the Act applied because it was a case of a continuing wrong and a fresh period of limitation begins to run every moment during which the wrong continue. Reliance was placed on the decision of this Court in Ram Saran v. Chatar Singh, I.L.R. XXIII Alld. 465. In that case the question considered was whether having obtained a decree for perpetual injunction in an earlier suit the plaintiffs were entitled to maintain a second suit for the same relief upon the defendants having disobeyed the perpetual injunction granted against them, and while answering this question against the plaintiffs the Court observed: "When a Court issues an order to a party in a suit for abstention from any particular act, and when the person to whom the order has been issued disobeys that order, he is guilty of contempt of Court, and the Court can, in our opinion, take proceedings to enforce its authority, notwithstanding anything contained in Article 179 of sch. II of the Indian Limitation Act XV of, 1877." The Court, therefore, merely held that the bar of limitation in Article 197 of the Indian Limitation Act, 1877 could not divest the Court of its jurisdiction to punish the contemning defendant if he was guilty of contempt of Court. The decision does not support the assumption that there was no bar of limitation to the making of an application under Order 21, rule 32 for enforcing a decree for permanent injunction. The decision does not support the assumption that there was no bar of limitation to the making of an application under Order 21, rule 32 for enforcing a decree for permanent injunction. The class of cases which can aptly fall within the scope of Sec. 23 are those where there is a recurring cause of action die in diem, for example the obstruction of a water course and of the flow of water, the building of a high wall or wire fencing which prevents the plaintiff's passage. Such cases have been discussed in Masooma Bibi v. Haji Mohammad Said Khan, A.I.R. 1942 Alld. 77 = 1941 A.L.J. 706. 9. Sec. 23 of the Indian Limitation Act would have no application where there is no continuing cause of action, for example, where a party is dispossessed from his property and the dispossession continues. It is a case where the wrongful act was committed by the act of dispossession and the effect of that wrong continued. It is not a case of a continuing wrong. As was observed by this Court in Pashupati Pratap Singh v. Chairman District Boards, A.I.R. 1953 Alld. 104 = 1952 A.L.J. 532. "The limitation in such a case begins to run from the date of dispossession even though the person dispossessed is deprived of his rights during the whole period of his dispossession." The Lahore High Court has held in Moti Rain v. Hansraj that the provisions of Sec. 23 cannot be invoked in a proceeding for disobedience of a permanent injunction. See also Chandrabhan Jagannath v. Ramnath Bharose, A.I.R. 1956 V.P. 34 Ramlal v. Thakurji Mandir, AIR 1933 Lahore 920 and Pura v. Banta, AIR 1938 Lahore 227. 10. Once Sarupa was dispossessed, and the appellants entered into possession, there was no question of any continuing wrong, as the wrong took place by the single act of dispossession. Learned counsel for the respondent referred to the decision of this Court in Mt. Masooma Bibi v. Haji Mohammad Said Khan, A.I.R. 1942 Alld. 77 = 1941 A.L.J. 706. That, however, is a case where there was an obstruction to the flow of water. It is clearly distinguishable from the present case. 11. Learned counsel for the respondent referred to the decision of this Court in Mt. Masooma Bibi v. Haji Mohammad Said Khan, A.I.R. 1942 Alld. 77 = 1941 A.L.J. 706. That, however, is a case where there was an obstruction to the flow of water. It is clearly distinguishable from the present case. 11. The next contention urged for the appellant is that Sarupa who had been dispossessed in April or May, 1952 lost his possessory rights on July 1, 1952, by virtue of the operation of Sec. 14 (1) of the U.P. Zamindari Abolition and Land Reforms Act. It is urged that having lost all right and interest in the plots it was not open to him to maintain the application under Order 21 rule 32 of the Code thereafter. The reasoning of the lower appellate court that the provisions of Sec. 14(1) could be availed of only by a mortgagor upon a dispute between him and the mortgagee does not appear to be correct. Sec. 14(1) divests the mortgagee absolutely of all right to hold or possess the plots. The divestment is not conditional or in relation to the mortgagor alone. The contention of the appellant in this behalf must also succeed. 12. Learned counsel for the respondent then contends that Sarupa was entitled to possession even after the loss of his rights because in any event he had a possessory title which was good against all the world except the mortgagor. This contention is without substance inasmuch as Sarupa had already been dispossessed prior to July 1, 1952 by the appellants. 13. It is not necessary to express any opinion on the question whether the allotment of the plots to the appellants under the U.P. Consolidation of Holdings Act conferred any rights open them. 14. In the result the appeal is allowed , the order of the lower appellate court is set aside and that of the executing court is restored. The appellants shall be entitled to their costs throughout.