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2004 DIGILAW 427 (MAD)

D. Balakumar @ Selvakumar v. Vedachalam

2004-03-12

M.THANIKACHALAM

body2004
Judgment :- 1. The decree holders/plaintiffs in O.S. No. 1528/90 on the file of the District Munsif-cum-Judicial Magistrate, Ambatur, unable to succeed in their attempt, to execute the mandatory injunction order, have come to this court, as revision petitioners. 2. The revision petitioners as plaintiffs had filed a suit originally, in the Court of District Munsif at Poonamallee, for declaration, permanent injunction and mandatory injunction against four defendants, arraying the respondents herein as the 2nd and 4th defendants. It appears the defendants had not contested the case, resulting a decree on 18.6.1992, as prayed for. Till the year 1997, though the plaintiffs had obtained a decree in the year 1992, they had not taken out any execution proceedings, for enforcing the order of mandatory injunction. In the meantime, the Judicial Magistrate, Ambattur was conferred with Munsif Power and therefore, it appears the decree was trasmitted, for execution before the District Munsif-cum-Judicial Magistrate, Ambattur. 3. The decree holders had filed E.P. No. 9/97 under Order 21 Rule 11(a) as well as under Order 21 Rule 32 C.P.C. against the 4th defendant/second respondent herein for the removal of illegal encroachment, made in the suit property as per Clause (3) of the decree. On 4.2.1997, though the counsel appeared for the fourth defendant, it seems no counter has been filed. In this view of the matter, the learned District Munsif, as per the order dated 28.4.1998 directed the 4th respondent to remove the illegal encroachment in the suit property, in my considered opinion, erroneously, forgetting the fact that there is already an order directing the 4th defendant/2nd respondent, to remove the illegal encroachment, as per clause (3) of the decree. 4. The execution proceedings was initiated only to enforce clause (3) of the decree and therefore, the Court ought to have taken steps, for the removal of the encroachment by the 4th defendant Municipality. Instead of taking appropriate steps by the court itself or by the inducement of the decree holders, a peculiar order was passed once again, directing the 4th defendant, to remove the illegal encroachment. It seems, thereafter, nothing had taken place and it is not known what had happened to the order dated 28.4.1998. The decree holders at least ought to have taken steps, on the failure of the 4th defendant, to remove the encroachment, through the process of court by paying batta, etc. It seems, thereafter, nothing had taken place and it is not known what had happened to the order dated 28.4.1998. The decree holders at least ought to have taken steps, on the failure of the 4th defendant, to remove the encroachment, through the process of court by paying batta, etc. The typed copy of the E.P. filed in the typeset does not disclose what had happened in the execution proceedings after 28.4.1998. 5. The decree holders once again filed E.P. No. 36/98 under Order XXI Rule 11(a) of C.P.C. against the 4th defendant/2nd respondent for contempt on 20.7.1998. In that execution proceedings, the other judgment debtors viz., defendants 1 to 3 were not impleaded as parties. It seems, defendants 1 to 3 are also in occupation of the premises. But, no decree was obtained against them, for their removal directly, directing them to vacate the premises, in order to comply with the decree for declaration. Knowing the fact that the defendants are also in occupation of the premises, the plaintiffs had obtained the relief of mandatory injunction only against the 4th defendant. When the execution petition No. 36/98 is pending, the party who is going to be affected, in the event of the execution of the decree, the second defendant/first respondent herein had filed a memo of objection before the Court, stating that E.P. for execution of mandatory injunction originally filed itself is not maintainable and therefore, the subsequent E.P., which sought to enforce the order passed in E.P. No. 9/97 is not maintainable, since the execution petition for mandatory injunction is barred by limitation, because of the fact E.P. was not filed within three years from the date of the decree, as contemplated under Section 135 of the Limitation Act. 6. The learned District Munsif, calling for objection from the decree holders, hearing the parties had recorded the memo, after a detailed order, concluding that the execution petition for mandatory injunction is barred by limitation, in view of the fact, admittedly E.P. was not filed within three years, further concluding that the relevant provision applicable to the decree is only Article 135 of the Limitation Act and not Article 136 of the Limitation Act. In this view, it seems, the E.P. was closed. 7. In this view, it seems, the E.P. was closed. 7. Aggrieved by the order passed by the District Munsif in the memo filed by the first respondent herein, as well as the conclusion that the E.P. is barred by limitation, the revision is targeted, impugning the said orders. 8. Heard the learned counsel for the petitioners, Mr. M. Chidambaram and the learned counsel for the respondents, Mr. V. Raghavachari and Mrs. S. Jothivani, respectively. 9. The learned counsel for the revision petitioners submits, that though there is a decree for mandatory injunction, it is not an independent relief granted, de hors the declaration, whereas the mandatory injunction is granted recognizing the existing right of the plaintiff and in this view, for the execution of the same, the relevant Article applicable would be 136 of the Limitation Act and not 135 of the Limitation Act, as held by the Court below. It is the further submission of the learned counsel, that the second E.P. is maintainable, since the same was filed within the prescribed period of limitation, for the execution of the decree. In this view, he submits that the order of the court below, which is based on erroneous assumption, requires setting aside by the interference of this Court, under the revisional jurisdiction. 10. On the other hand, the learned counsel appearing for the respondents submits that, (1) the revision against the second respondent is barred by limitation, (2) the decree for mandatory injunction obtained by the decree holders is independent of the declaration sought for and therefore, for the execution of the said mandatory injunction, the period of limitation is only three years, as contemplated under Article 135 of the Limitation Act. (3) The second E.P. is not at all maintainable, since it aims to execute an order passed in the previous E.P. No. 9/97 and since no decree or formal order was drafted, in order to have the enforcibility, as contemplated under Order 21 Rule 11 C.P.C. Elaborating the above points, a strenuous argument was submitted for the dismissal of the revision. 11. The learned District Munsif passed an order dated 21.12.2000 in the memo filed by the first respondent. Originally, the revision was filed only against the first respondent/second defendant on 12.4.2001, within the time. The relief sought for in the E.P. is only against the 4th respondent, Ambattur Municipality. 11. The learned District Munsif passed an order dated 21.12.2000 in the memo filed by the first respondent. Originally, the revision was filed only against the first respondent/second defendant on 12.4.2001, within the time. The relief sought for in the E.P. is only against the 4th respondent, Ambattur Municipality. Unfortunately that Ambatur Municipality was not arrayed as a respondent in the revision. When it was brought to notice, an application was filed, to implead the second respondent, which was onc e dismissed for default, then restored and the said impleading petition was allowed on 15.11.2002 i.e. after more than 1- years, from the date of filing of the revision petition. Having the above facts, the learned counsel for the second respondent, as well as the first respondent would submit, that the revision as against the second respondent as such, is not maintainable, since the same is barred by limitation. 12. For filing the revision, the period of limitation is 90 days and admittedly, the second respondent was not impleaded in the revision, within the said period. This Court, while passing an order in the impleading petition also, has not stated specifically, that the effect of impleading the second respondent will operate retrospectively i.e. from the date of filing of the revision petition or something like that. In the absence of any such specific direction, according to the learned counsel for the respondents, it should be deemed that the second respondent was impleaded on the date of the order viz. 15.11.2002. In aid reliance is placed on Ramalingam Chettiar v. P.K. Pattabiraman [ 2001 (4) SCC 96 = 2001 3 L.W. 296]. 13. In the above said case, the Apex Court, while considering the effect of Section 21(1) Limitation Act, has held, unless Court expressly directs otherwise by a separate and further order under the proviso, suit would be deemed to have been instituted against such defendant on the date of his impleadment, not any earlier date. This principle is well applicable to the present case. When the impleading petition was allowed, there was no direction and therefore, it should be held that the revision against the second respondent came in to effect only from the date of the order viz., 15.11.2002, on which date, the revision against the second respondent is clearly barred by limitation. This principle is well applicable to the present case. When the impleading petition was allowed, there was no direction and therefore, it should be held that the revision against the second respondent came in to effect only from the date of the order viz., 15.11.2002, on which date, the revision against the second respondent is clearly barred by limitation. For this proposition, and submission by the learned counsel for the respondents, no answer is forthcoming from the other side. In this view of the matter, it should be held, as far as the second respondent is concerned, the revision is out of time and therefore, even by allowing the revision, as far as the second defendant/first respondent is concerned, it seems, no purpose would be served, since the E.P. filed by the decree holders against the 4th defendant/second respondent was dismissed. It could be said if the dismissal order of the E.P., on the memo filed by the second defendant, is set aside, then E.P. could be restored. In this view, we have to dispose of the C.R.P. on merits. 14. In order to appreciate the point in controversy, as well as to fix the period of limitation, by fixing the Article applicable to the present case, we have to see the nature of the suit, relief granted subsequent to execution and the orders passed therein and the second execution petition, in which the impugned order was passed. 15. The plaintiffs/decree holders had filed a suit claiming peculiar reliefs and obtained an ex parte decree. Though it is an ex parte order, unless it is set aside, it would have its validity of enforcibility also, depending upon the prayer. The reliefs sought for in the plaint are: “(a) declaring that the disputed portion 257 28? totally measuring in all 7200 sq.ft. in S. No. 816/B2, Venkatraman Nagar at No. 61, Korattur Village, madras-80 is a common road, common not only to the plaintiffs but also to the defendants as well as any subsequent purchaser and no one can claim any right title or interest in the scheduled mentioned property viz., the disputed road mentioned in the schedule. in S. No. 816/B2, Venkatraman Nagar at No. 61, Korattur Village, madras-80 is a common road, common not only to the plaintiffs but also to the defendants as well as any subsequent purchaser and no one can claim any right title or interest in the scheduled mentioned property viz., the disputed road mentioned in the schedule. (b) By passing an order of permanent injunction restraining the defendants 1 to 3 or anyone claiming through or under them from alienating, leasing out or dealing with the schedule mentioned property in any manner to the detriment of the plaintiffs or subsequent purchasers. (c) By passing an order of mandatory injunction, directing the fourth defendant the Ambattur Municipal Township to remove the said unauthorised and illegal encroachers of the public property namely the common road measuring 7200 sq.ft. in S. No. 816/B2 61, Korattur Village, Venkataraman Nagar, Madras-80 or from the road for public use.” 16. The above prayers were accepted by the court, decreeing the suit as prayed for. The relief of mandatory injunction is only against the 4th defendant-Ambattur Municipal Town Ship. Though the declaration is against the defendants, the order of permanent injunction is against defendants 1 to 3. The declaratory relief sought for against the 4th defendant, assuming correct, is not executable. The executable part of the decree is only for mandatory injunction and it has no connection with the declaration. 17. The suit is valued separately for the reliefs 1 & 2 under Section 25(b) of the Court Fees Act and the 3rd relief is valued under Section 27(c) of the Court Fees Act, separately. Therefore, it could not be said, at any stretch of imagination, that the mandatory injunction sought for is the consequential relief of declaration, whereas it could be said that it is a separate relief, granted separately, de hors the other relief. 18. As far as the other relief is concerned i.e. permanent injunction, it is the consequential relief of the first relief and therefore, it seems, it is valued separately. In this view, as rightly submitted by the learned counsel for the respondents, the decree for mandatory injunction is separable from other parts of the decree. Because of this reason alone, when the 4th defendant/second defendant failed to comply with the mandatory order, E.P. was filed against the 4th defendant alone, for the removal of the unauthorised construction over the suit property. Because of this reason alone, when the 4th defendant/second defendant failed to comply with the mandatory order, E.P. was filed against the 4th defendant alone, for the removal of the unauthorised construction over the suit property. The mandatory injunction granted by the court is not in recognition of the plaintiffs interest in the suit property. The declaratory relief is not only in favour of the plaintiffs, but also in favour of the defendants, as well as any subsequent purchaser, anticipating future problem or future claim, which could not be granted generally. Further, it is seen, it is also not the case of the plaintiffs, that in order to reach their absolute property, the suit property is serving as access and therefore, that right should be declared, then consequently directing the encroacher to remove the obstruction, by way of mandatory injunction. The relief sought for is, declaration over the common property, not only in favour of the plaintiffs, but also in favour of the defendants, and the mandatory injunction is not granted in pursuance of the same and it is granted separately, on the allegations that the 4th defendant being the public authority, is entitled to maintain this property, free from obstruction, for the common use of the parties, expecting future disturbance, describing the persons, those who are in occupation as illegal encroacher, that too without impleading all the parties therein. In this view of the matter, I am inclined to think from the frame of the suit, as well as the relief sought for, the decree for mandatory injunction is separable and other operative portion of the decree are separable. 19. The learned counsel for the revision petitioners submits that the plaintiffs/decree holders, in substance, got a decree for declaration and for permanent injunction, even though decree is also for mandatory injunction and in this view, decree for mandatory injunction granted is inseparable and the same could be executed within 12 years, from the date of decree, as contemplated under Article 136 of the Limitation Act. 20. On the other hand, the specific case of the respondents is that the Article applicable to this case is, 135 and not 136. In this context, we have to see the relevant provisions viz., Articles 135 & 136 of the Limitation Act. 20. On the other hand, the specific case of the respondents is that the Article applicable to this case is, 135 and not 136. In this context, we have to see the relevant provisions viz., Articles 135 & 136 of the Limitation Act. Article 135 reads: Description of application Period of limitation Time from which period begins to run For the enforcement of a decree granting a mandatory injunction Three years The date of the decree or where a date is fixed for performance such date Article 136 reads: Description of application Period of limitation Time from which period begins to run For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Twelve years When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. 21. There is no specific provision in C.P.C. for the enforcement of a decree for mandatory injunction. Since period is prescribed for the enforcement of a decree for mandatory injunction, irrespective of the procedure contemplated under Order 21 C.P.C., we have to depend upon the Limitation Act. As quoted above, for the enforcement of a decree, granting a mandatory injunction, the period prescribed is three years from the date of decree or if time is fixed within three years after the expiry of that period. In this case, E.P. No. 9/97 was filed on 4.2.1997, though the decree was passed on 18.6.1992, i.e. four years seven months. Thus, it is shown that E.P. is barred by limitation. It is the duty of the Court, as contemplated under Section 3 of the Limitation Act, if an application is made after the prescribed period, it should be dismissed, despite the fact limitation has not been set up as a defence. Therefore, the first E.P. itself ought to have been dismissed, as clearly barred by limitation, since the same was filed, after the lapse of more than three years, as indicated supra. 22. Therefore, the first E.P. itself ought to have been dismissed, as clearly barred by limitation, since the same was filed, after the lapse of more than three years, as indicated supra. 22. In order to bring the E.P. in time, aid is sought from the decision of this Court in M.A. Raja v. S. Vedhantham Pillai ( 2000 (II) CTC 199 ). In the case involved in the above decision, on the basis of some recognised right, a permanent injunction was obtained against the defendant, in addition, a mandatory injunction also, to demolish and remove the building constructed by them in the suit property, which was the hindrance or the obstruction to reach the property of the decree holder therein, since the decree holder is having right of access to his building from the road, without any obstruction and the plaintiff got legal right. This kind of right that could be recognised is not available in our case and therefore, it seems a separate relief of mandatory injunction is sought for, paying separate court fee also. Only because, the right of the plaintiff to have access to the building, without obstruction is recognised, a decree for injunction is granted in the case involved in the above decision, ordering by way of mandatory injunction for the removal of the obstruction also. Therefore, this Court has held, even though decree is also for mandatory injunction, execution would not be barred by limitation, as decree is also for permanent injunction. On facts, as well as on the basis of the reliefs granted in this case, this decision will not come to the aid of the decree holders, to bring the mandatory injunction obtained by them separately, including the same as if it is for permanent injunction, thereby invoking Article 136 of the Act and bringing the E.P. within the period of 12 years. 23. In N.S. Karuppanna Gounder v. Nagammal ( 1996 (II) CTC 1 = 1996 2 L.W. 511), a question had raised, whether successive execution petition can be filed within the period prescribed by Article 136. In the case involved in the above decision, an auction purchaser had purchased the property at the court auction sale, which was confirmed on 9.11.1981 and a sale certificate was also issued. In the case involved in the above decision, an auction purchaser had purchased the property at the court auction sale, which was confirmed on 9.11.1981 and a sale certificate was also issued. Thereafter, since the properties were in the occupation of the defendants, the auction purchaser had filed E.P. and the court passed a delivery order on 19.3.1982, directing the defendant to deliver possession of the properties. The order of delivery had been passed within one year from the date when the sale become absolute, as per the limitation prescribed. Thereafter, when delivery was sought for and when it was opposed on the ground that the same is barred by limitation, considering the sale, issue of sale certificate and other provision, a Division Bench of this Court held that the order of delivery, which had been passed within one year from the date, when the sale became absolute, the decree could be executed within 12 years under Article 136 of the Limitation Act, since the delivery order is an executable order as a decree, considering the provision of Order 21 Rule 11 (2) as well as 95 of C.P.C. 24. Order 21 Rules 74 to 106 C.P.C. deals with sale of movable property and its subsequent proceedings. Rule 94 C.P.C. contemplates certificate to purchaser, issue of certificate to purchaser and Rule 95 contemplates delivery of property in occupancy of judgment debtor. Rule 97 contemplates resistance or obstruction to possession of immovable property. Since Rule 95 says, where the immovable property sold is in the occupancy of the judgment debtor, if a certificate in respect thereof, has been granted under Rule 94, the Court shall on the application of the purchaser, order delivery to be made by putting such purchaser. The certificate issued is executable. Considering these facts, the Division Bench has observed that Article 136 is applicable not only to decree, but also to executable orders passed by the courts, thereby affirming further, successive execution application could be filed within the period prescribed by Article 136. It is also seen from the facts of that case, that after the delivery was ordered, the execution application was dismissed and thereafter, E.A. was filed in the year 1989. Therefore, the Bench, concluded that delivery was ordered within the time and thereafter, what remained was only the ministerial Act of putting into effect of the said order of delivery. It is also seen from the facts of that case, that after the delivery was ordered, the execution application was dismissed and thereafter, E.A. was filed in the year 1989. Therefore, the Bench, concluded that delivery was ordered within the time and thereafter, what remained was only the ministerial Act of putting into effect of the said order of delivery. It is also further observed as follows: “Even viewed otherwise, that the order directing delivery of possession required to be executed as per the law of limitation Act, Article 136 of the Limitation Act is only proper provision to be applied because that Article applies not only to a decree, but also to an order of court, which is executable as a decree.” 25. The learned counsel for the respondents in support of the contention that mandatory injunction is separable and the same is covered under Article 135 of the Limitation Act, sought aid from the decisions in Sarwan Lal v. Kanti Prasad (AIR 1986 Alahabad 1); Harihar Pandey v. Mangala Prasad Singh (AIR 1986 Alahabad 9); & Deokinandan Poddar v. Ramesh Kumar Goenka (AIR 1997 Patna 153). In all the cases, it is held if direction is in the nature of mandatory injunction and execution of such decree, period of limitation is three years, as contemplated under Article 135 and Article 136 is not applicable. If at all, the second clause of the decree viz., injunction alone could be executed and the third clause viz., mandatory injunction is separable as held in the above decision and the execution as laid is hit by bar of limitation under Article 135. 26. To apply the dictum of the Supreme Court cases relied on by the petitioners, we have to see here, the subsequent E.P. No. 36/98. In E.P. No. 36/98, the prayer is: “The decree holders herein prays that this Honourable Court may be pleased to pass an order of arrest of the 4th J.D. Defendant for the non obedience of this Honble Courts decree order dated 18.6.1992 passed in E.P.. No. 9/97 dated 28.4.1998 and punish him for the utter floughtation of this Honble Courts order and put him into civil prison for three months and pass necessary further orders in the interest of justice. No. 9/97 dated 28.4.1998 and punish him for the utter floughtation of this Honble Courts order and put him into civil prison for three months and pass necessary further orders in the interest of justice. E.P. Filed under Order 21 Rule 32 C.P.C. & Section 151 C.P.C.” It is also said in coloumn No. 6 that E.P. No. 9/97 is ordered accordingly and the defendant though served, failed to take any action and therefore, this E.P. Viz. 36/1996 is filed for contempt. In the previous E.P., the order passed reads: “The 4th defendant is directed to remove the illegal encroachment in the suit property.” 27. As seen from E.P. No. 36/98, it seems, the decree holder is attempting to execute the order passed by the lower Court in E.P. No. 9/97. Therefore, we have to see whether that order is executable, by applying the above rulings of the Division Bench. E.P. No. 9/97 was filed under Order 21 Rule 11(A) as well under Order 21 Rule 32 C.P.C. Rule 11(a) and 32 say, for the execution, there must be a decree. Here there is no decree passed by the District Munsif, while disposing E.P. No. 9/97 and there was a direction which was given originally, while passing the ex parte decree in the suit. On the basis of the order passed in E.P., no formal decree or fair order has been drafted, in order to see that it could be executed. The order passed by the District Munsif in E.P. No. 9/97 would not come within the definition of Section 2(2) of 2(14) of C.P.C. Therefore, the question of enforcing that order in E.P. No. 36/98 does not arise for consideration, as pointed out supra. E.P. No. 36/98 is filed under Order 21 Rule 32 C.P.C, which says about the enforcement of the decree. In this view of the matter also, as rightly contended by the learned counsel for the respondents, E.P. No. 36/98 is not maintainable. 28. Ignoring the prayer, even if we take the original decree for mandatory injunction, then on the date of filing of E.P. No. 36/98, it is clearly barred by limitation. For the foregoing reasons, I find no difficulty in saying that the revision is devoid of merits, deserving dismissal. In the result, the revision fails and the same is dismissed with costs.