Nemi Shanker S/o Shri Inderchand v. Moolchand S/o Shri Shivdayal
2005-08-03
J.R.GOYAL
body2005
DigiLaw.ai
JUDGMENT 1. - Instant revision is directed against the order passed by learned Civil Judge (Senior Division) Dataramgarh District Sikar on 17.10.2002 in Execution Application No. 3/2001 whereby application u/s. 47 of the Code of Civil Procedure (for short 'the CPC') filed by the petitioner has been rejected. 2. The facts and circumstances giving rise to this revision are that decree holder non-petitioner-Moolchand filed a suit for injunction and mandatory injunction which was decreed on 16.12.1988; appeal filed against the decree was rejected on 15.5.1996; thereafter on 21.8.2001 the non-petitioner filed Execution Application for enforcement of the mandatory decree, to which objection u/s. 47 of the CPC was filed by the defendant-petitioners on the ground that in view of the specific provisions u/Art. 135 of the Limitation Act, 1963 (for short 'the Act') mandatory decree could be executed within three years' period from the date the decree becomes executable: executing Court rejected the objection, hence this revision. 3. Heard learned counsel for the parties and perused the impugned order. 4. Learned counsel for the petitioner contended that for the Execution of decree for mandatory injunction, period of limitation is three years as provided u/Art. 135 of the Act. Thus the Execution Application, which was filed beyond this period of three years is hit by Article 135 of the Act. He placed reliance on the judgment of a coordinate Bench of this Court in Moman v. Munshi & Ors., 2003(1) DNJ (Raj.) 261. 5. Learned counsel for the non-petitioner-decree holder contended that Article 136 of the Act is applicable and, therefore, the decree is executable according to law. 6. I have considered the rival contentions. It is not disputed that Article 135 of the Act provides three years' period for enforcement of a decree relating to mandatory injunction. This period commences from the date the decree becomes executable from the date fixed by the Court for performance of such decree. Article 136 of the Act provides for a period of limitation of twelve years for execution of any decree other than a decree granting a mandatory injunction.
This period commences from the date the decree becomes executable from the date fixed by the Court for performance of such decree. Article 136 of the Act provides for a period of limitation of twelve years for execution of any decree other than a decree granting a mandatory injunction. In the instant case, following decree was passed : " vr% vkns'k gS fd oknh dk nkok e; [kpkZ izfroknhx.k ds fo:) fMdzh fd;k tkrk gS rFkk izfroknhx.k dks LFkkbZ fu"ks/kkKk ls ikcUn fd;k tkrk gS fd os fookfnr lkoZtfud pkSd dh---- ftls uD'ks esa d [k x ?k ls fn[kyk;k x;k gS rFkk tks ekStk xzke dqyh esa gS mlesa fdlh izdkj dh rkehj vkxs ugha djsa rFkk ml tehu dks [kqyh j[ks rFkk izfroknhx.k }kjk fu.khZr nhokj d x o rkehjs ftUgsa uD'ks esa V B M < o p N t > ls fn[kyk;k x;k gS mUgsa gVokus dk oknh vf/kdkjh gS rFkk bu rkehjksa dks izfroknhx.k Lo;a gVk ys ;k muds }kjk ugha gVkus ij mUgsa gVokus dh dk;Zokgh djus ij mUgsa gVkus dk [kpkZ izfroknhx.k ls oknh olwy djus dk vf/kdkjh gksxkA " From the decree dated 16.12.1988, it is clear that the trial Court compelled the petitioners for the performance of certain act i.e. demolition of unauthorised construction. Thus part of the relief granted in the decree is in the form of mandatory injunction and so Article 135 of the Act will come into play. The decree was passed by trial Court on 16.12.1988 and appeal was dismissed on 15.5.1996; thereafter Execution Application was filed, with the following prayer, on 21.8.2001 i.e. long after expiry of the period of limitation : " fuosnu gS fd U;k;ky; }kjk fMdzh fn0 16-12-1988 ds ek/;e ls izfroknhx.k en;wuku dks fooknxzLr Hkwfe esa cukbZ xbZ nhokj uD'ks esa ftls d] x o nhxj rkehjkr o v{kj p] N] t] > o V] B] M o < esa Lo;a vius [kpsZ ls gVok ysosa fdUrq ( en;wuku ) us fMdzh dh ikyuk ugha dhA bl dkj.k fMdzh fnukad 16-12-1988 o vihyh; U;k;ky; dh fMdzh fnukad 15-05-1996 dh btjk; djokuk tkuk U;k;ky; fgr esa vko';d gSA " 7.
It is, therefore, patent that the relief, to the extent, of mandatory injunction granted in the decree being barred by limitation, cannot be executed In this view of the matter the finding recorded by the executing Court in the impugned order cannot be sustained. 8. In the result, the revision petition is allowed and the impugned order is set aside.Revision allowed. *******