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2005 DIGILAW 189 (AP)

Bonthu Veera Reddy v. Kolli Venkateswara Reddy

2005-02-28

S.ANANDA REDDY

body2005
S. ANANDA REDDY, J. ( 1 ) THIS revision is filed by the second judgment-debtor aggrieved by the order passed by the III Additional Junior civil Judge, Vijayawada, in E. P. No. 232 of 2002 in OS No. 608 of 1987 dated 24-9-2002 under which the petitioner was directed to remove the constructions at his own cost. ( 2 ) ACCORDING to the petitioner, the respondents 1 to 4 filed a suit both for mandatory Injunction as well as for permanent Injunction with reference to the constructions across the passage between d, D1 and C, C1. The said suit, after full trial, was decreed in favour of the respondents-decree holders granting both mandatory injunction as well as permanent injunction. While granting decree, the judgment-debtors were given three months time to remove the constructions. The decree-holders filed the execution petition seeking to order the removal of constructions across the passage between D, Dl and C, c1. The said petition was contested by the respondents stating that the mandatory injunction decree passed against them was already complied with by removing the encroachment. Further, it was pleaded that the decree for mandatory injunction has to be executed within a period of three years and the present execution petition is barred by limitation. Thereafter, the executing Court after considering the rival contentions, passed an order negativing the contentions of the judgment-debtors that die execution petition is barred by limitation and ordered removal of the constructions in the disputed passage. Hence, the present revision petition. ( 3 ) THE learned Counsel for the petitioner contended that the Executing Court had committed grave error in ordering execution of the mandatory injunction, though admittedly, the said execution petition was filed on 26-2-2000 when the decree was passed on 20-10-1994. It is contended that a mandatory injunction can be executed only within a period of three years from the date of the decree in terms of Article 135 of the Limitation Act (for brevity the Act ). As the execution petition is filed beyond the period of three years, the judgment- debtors are not entitled to execute the mandatory injunction. ( 4 ) THE learned Counsel appearing for the decree-holders however, sought to sustain the order of the Executing Court. As the execution petition is filed beyond the period of three years, the judgment- debtors are not entitled to execute the mandatory injunction. ( 4 ) THE learned Counsel appearing for the decree-holders however, sought to sustain the order of the Executing Court. According to the learned Counsel, Article 136 of the act would apply as per which the decree can be executed within a period of 12 years from the date of the decree. It is also contended that the decree-holders were granted not only mandatory injunction but also permanent injunction, therefore, in execution of the permanent injunction, any constructions that were made subsequent to the granting of the mandatory injunction can be removed. Therefore, there is no illegality or irregularity in the impugned order. ( 5 ) HEARD both sides and considered the material on record. ( 6 ) THE respondent-decree holders filed the execution petition seeking the following relief: "to order the removal of constructions across the passage between D, D1, C, C1 namely walls between D, D1, D1, C1 and C1 c made by the 2nd JDr and to recover the suit costs. " ( 7 ) A perusal of the relief sought for in the execution petition clearly shows that the respondents-decree holders are seeking to execute the mandatory decree to remove the constructions made in the suit passage by the petitioner-judgment debtors. A perusal of Articles 135 and 136 of the act made clear that for enforcement of a decree granting mandatory injunction, the period prescribed is three years under article 135 while for execution of any decree other than a decree granting mandatory injunction or order of any Civil Court is 12 years under Article 136. Therefore, there is no ambiguity as to the limitation of the decree for mandatory injunctions that could be executed only within a period of three years in terms of Article 135 of the act. Admittedly, the execution petition was filed on 26-2-2000 while the decree was passed in favour of the respondent-decree holders on 20-10-1994. Therefore, it is clear that they filed the execution petition after more than three years, therefore, the mandatory injunction could not be executed after three years. ( 8 ) ALTERNATIVELY, the contention of the decree-holders is that the original constructions were removed in compliance of the decree, but however, after expiry of three years, fresh constructions have been made by the judgment-debtors. ( 8 ) ALTERNATIVELY, the contention of the decree-holders is that the original constructions were removed in compliance of the decree, but however, after expiry of three years, fresh constructions have been made by the judgment-debtors. If that factual position is true, even then the respondent-decree holders cannot seek to execute the decree for a second time, when the original constructions have already been removed in pursuance of the decree. If any fresh constructions have been made by the judgment-debtors, the decree-holders ought to have taken necessary steps not only to prevent the judgment-debtors from making any constructions, but also for punishment for violation of the permanent injunction that was granted in favour of the decree-holders and against the judgment- debtors, but the respondent-decree holders did not resort to such act. Therefore, the present execution petition which was filed seeking mandatory relief cannot be allowed to stand in view of the bar of limitation. ( 9 ) UNDER the above circumstances, the impugned order is set aside and the execution petition is dismissed. ( 10 ) ACCORDINGLY, the civil revision petition is allowed, No order as to costs.