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2006 DIGILAW 409 (RAJ)

Bhanwar Devi v. Raj Kumar

2006-02-07

DALIP SINGH

body2006
Judgment Dalip Singh, J.-This Revision Petition No. 215/2000 has been filed by the Judgment Debtor challenging the order dated 10.12.1999 by which the objections under Section 47, CPC filed by the petitioner have been dismissed. 2. The facts of the case in short are that a suit No. 114/1996 for injunction was filed by one Suresh Chandra against the defendants namely Smt. Bhanwar Devi petitioner, Raj Kumar who is Non-petitioner No. 1, Gopal Lal Non-petitioner No. 2, and one Kaluram Non-petitioner No. 4, the said suit was decreed on 22.01.1993, the decree reads as under:- 3. After passing of the decree it is stated that the defendants did not comply with the decree in view of the aforesaid the plaintiff-decree-holder Suresh Chandra filed an execution application No. 13/1996 on 02.01.1996 against the defendant Smt. Bhanwar Devi petitioner, Raj Kumar non-petitioner No. 1, and Gopal Lal Non-petitioner No. 2, as well as Kaluram the tenant who was doing tailoring in the Pol and who during the pendency of the execution application No. 13/1996 filed by Suresh Chandra is said to have vacated. After filling the execution application Suresh Chandra sold the property belonging to him to Raj Kumar the Non-petitioner No. 1, who was out of the defendant Judgment -Debtor vide registered sale deed dated 12.02.1996. Raj Kumar Non-petitioner No. 1, who is the Judgment Debtor after having purchased the property belonging to Suresh Chandra the plaintiff-decree-holder moved an application under Order 21 Rule 16, CPC for transposition as the decree-holder in place of Suresh Chandra on 02.08.1996. The Executing Court vide its order dated 10.12.1997 dismissed the application under Order 21 Rule 16 CPC filed by Raj Kumar by holding that Order 21 Rule 16 CPC only authorised the transfer to file an execution application but not to get himself transposed as the decree-holder in the execution application filed by the decree-holder and as such vide order dated 10.12.1997 the application filed by Raj Kumar was dismissed. 4. The operative portion of the order dated 10.12.1997 passed in Execution Petition No. 13/1996 reads as under: "……………………Order 21 Rule 16 CPC authorize transferee to file an execution application but does not to get him transposed as Decree-Holder. Hence the application dated 02.08.1996 is dismissed according to above discussion. Sd/-" 5. 4. The operative portion of the order dated 10.12.1997 passed in Execution Petition No. 13/1996 reads as under: "……………………Order 21 Rule 16 CPC authorize transferee to file an execution application but does not to get him transposed as Decree-Holder. Hence the application dated 02.08.1996 is dismissed according to above discussion. Sd/-" 5. Pursuant upon the said order dated 10.12.1997 the Execution Application No. 13/1996 filled by Suresh Chandra decree-holder was dismissed on 09.01.1998 for non prosecution. The order dated 09.01.1998 in Execution Petition No. 13/1996 reads as under:- 6. After dismissal of the application under Order 21Rule 16 CPC filed by Raj Kumar on 10.12.1997, Non-petitioner No. 1, filed a fresh execution application which was registered as Execution Application No. 1A/1998 on 16.01.1998. The order sheet dated 16.01.1998 reads as under: 7. Alongwith the said application the Non-petitioner No. 1, also moved an application under Order 21 Rule 16 CPC. In the said execution application No. 1A/1998 the petitioner Judgmnet-debtor Smt. Bhanwar Devi moved an objection petition under Section 47 of CPC inter alia with the execution application filed by the Non-petitioner No. 1, Raj Kumar was barred by limitation under Article 135 of the Limitation Act, 1963 but also that Raj Kumar had only purchased the property from Suresh Chandra and had not purchased the decree. It was also stated in the objection petition that Raj Kumar the applicant was also a Judgment -debtor and was equally bound by the decree as the objector Smt. Bhanwar Devi and Gopal Lal. It was also submitted that the decree for mandatory injunction against the other co-owners in the property was personal to the decree-holder Suresh Chandra and that the said decree not having purchased it could not be enured for the benefit of the purchaser Raj Kumar as the injunction did not run with the property. It was also contended that there was no decree for possession. 8. The learned executing Court by impugned order dated 10.12.1999 dismissed the objections filed by the petitioner holding that the Non-petitioner No. 1, having purchased the property became entitled to execute the decree and that in terms of Order 21 Rule 16 CPC the application filed by the Non-petitioner No. 1 Raj Kumar having been allowed he was entitled to execute the decree. It was held by the executing Court that since the execution application No. 13/1996 had originally been filed by Suresh Chandra and the same was within time and, therefore, the Non-petitioner No. 1, who was the transferee from Suresh Chandra the decree-holder, Raj Kumar Non-Petitioner No. 1, was entitled to execute the decree and that the execution petition was not barred by limitation. 9. In the present revision petition the learned Counsel, for the petitioner has submitted that the learned executing Court committed serious error in holding that the Execution Petition No. 1A/1998 filed by Raj Kumar on 06.01.1998 was a continuation of the earlier execution petition No. 13/1996 and that he had got himself transposed as the decree-holder vide order dated 28.01.1998 in the Execution Application No. 1A/1998. It has been submitted that so far as the question of transposition is concerned the appliction filed by Non-petitioner No. 1, Raj Kumar for transposition had been rejected by the executing Court vide order dated 10.12.1997 passed by Execution Application No. 13/1996 by specifically holding that the petitioner cannot be transposed but has right to move a fresh execution application and consequently the application filed by Raj Kumar on 02.08.1996 was dismissed on 10.12.1997. It was further submitted that even assuming that the learned executing Court had allowed the application filed on 06.01.1998 under Order 21 Rule 16 CPC in the Execution Application No. 1A/1998 the matter was res judicata as Raj Kumar was bound by the earlier order dated 10.12.1997 and the executing Court could not go into the same question again. 10. It has been submitted that in terms of Article 135 of the Limitation Act, 1963 the period for enforcement of a decree granted for mandatory injunction is 3 years from the date fixed for the performance of such a decree. It is submitted that in the decree dated 22.01.1993 two months time had been granted under the decree for removal of the Thadi and Cabin from Chabutra which was in the form of mandatory injunction. Thus the period of three years plus two months would expire on or about 22.03.1996 and the present Execution Application No. 1A/1998 having been filed by Raj Kumar on 06.01.1998 was clearly beyond the statutory period of limitation and as such the execution application was required to be dismissed as having been filed beyond the time allowed under Article 135. 11. 11. In response to the aforesaid the learned Counsel for the petitioner has submitted that the decree in question dated 22.01.1993 was in the form of perpetual injunction and not mandatory injunction and as such under Article 136 the period of limitation would be 12 years when the decree will be enforceable. It has further been submitted that in the instant case the Non-petitioner No. 1 Raj Kumar was transposed as decree-holder by the order dated 28.08.1998 passed by the Executing Court on the application dated 06.01.1998 filed under Order 21 Rule 16 CPC and therefore, the Non-petitioner No. 1 having been transposed as the decree-holder he was entitled to continue with the execution application. 12. I have given my thoughtful consideration to the rival submissions. So far as the submission of the learned Counsel for the Respondent No.1, Raj Kumar that by order dated 28.08.1998 Raj Kumar Non-petitioner No. 1 was transposed as decree-holder since the application filed by Raj Kumar on 06.01.1998 under Order 21 Rule 16 CPC was allowed is concerned it may be stated, that from the record it is clear that the Execution Petition No. 1A/1998 was filed by Suresh Chandra as well as Raj Kumar on 06.01.1998 after the application filed by Non-petitioner No. 1 Raj Kumar under Order 21 Rule 16 CPC in Execution Application No. 13/1996 had been dismissed vide order dated 10.12.1997 passed in the Execution Application No. 13/1996 filed by Suresh Chandra for the execution of the decree dated 22.01.1993. After the aforesaid order dated 10.12.1997 the Execution Application No. 13/1996 was dismissed for non prosecution vide order dated 09.01.1998 as reproduced above. Consequently even if the application dated 06.01.1998 was allowed vide order dated 28.08.1998 by the executing Court, it would be inconsequential as on 28.08.1998 the Execution Application No. 13/1996 was not pending at all but stood dismissed. Even otherwise I am of the view that Raj Kumar and Suresh Chandra having filed a separate Execution Application which is the present Execution Application No. 1A/1998 in which the impugned order has been passed, vide order dated 28.08.1998 Raj Kumar Non-petitioner No. 1, could only be transposed as the decree-holder in the present Execution Application No. 1A/1998 which was filed on 06.01.1998 and ordered to be registered separately as is evident from the order sheet of 06.01.1998 reproduced above. 13. 13. In view of the aforesaid there is no force in the submission of the Non-petitioner No. 1, that on account of order dated 28.08.1998 the application under Order 21 Rule 16 CPC dated 06.01.1998 filed by the Non-petitioner No. 1, having been allowed, the Non-petitioner No. 1, stood transposed as the decree-holder so as to continue the Execution Application No. 13/1996 which had already been dismissed vide order dated 09.01.1998 as such by order dated 28.08.1998 the transposition of Raj Kumar as decree-holder in Execution Petition No. 13/1996 does not arise. 14. In the instant case the terms of the decree which have been stated above will reveal the decree is essentially one for a mandatory injunction in as much as the Judgment -debtor had been directed to remove the cabin and thadi etc. placed on the chabutra within two months and further that in future they shall not let out the cabin and thadi to any person. In the execution also the grievance of the Non-petitioner No. 1, related to removal of the Thadi and Cabin etc. from the Chabutra. Thus the Non-petitioner No. 1 as well as Suresh Chandra were seeking the execution of the decree for mandatory injunction. In view of the aforesaid essentially it was the decree for mandatory injunction which was sought to be executed. Accordingly I am of the opinion that the present execution application would be governed by Article 135 of the Limitation Act, 1963. The decree was for mandatory injunction was dated 22.01.1993 and could be executed within 3 years plus period of two months granted by the executing Court for the removal of the cabin and thadi etc. On 06.01.1998 when the Execution Application No. 1A/1998 was filed it was clearly beyond the period of limitation prescribed under Article 135 of the Limitation Act, 1963. 15. In view of the aforesaid I am inclined to accept the submissions of the learned Counsel for the petitioner that the Execution Application No. 1A/1998 was filed beyond the period of limitation and deserves to be dismissed. 16. In view of the above I am not inclined to go into the other submissions made by the learned Counsel for the parties. Consequently this revision petition is allowed. The impugned order dated 10.12.1999 passed by the Executing Court is set aside and the Execution Application No. 1A/1998 is dismissed. 16. In view of the above I am not inclined to go into the other submissions made by the learned Counsel for the parties. Consequently this revision petition is allowed. The impugned order dated 10.12.1999 passed by the Executing Court is set aside and the Execution Application No. 1A/1998 is dismissed. In the facts and circumstances of the case there shall be no order as to costs.