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J&K High Court · body

2010 DIGILAW 200 (JK)

Ab. Ahad Sofi v. Gh. Ahmad Sofi

2010-04-17

MUZAFFAR HUSSAIN ATTAR

body2010
1. A printers devil in a Statute Book can play havoc with the rights of the parties who come to the Court of law to seek resolution of their disputes. 2. An Execution Petition was filed by the respondent before the Trial Court seeking execution of a decree for permanent injunction dated 25-06-1996. The respondent had instituted Civil Original Suit against the petitioner with the prayer that by issuance of a decree for permanent injunction, defendants 1 to 3 in the suit, he perpetually restrained from demolishing, blocking or otherwise interfering with the drain shown as mark (B) in the Site Plan appended to the Plaint, which was being used as an outlet of waste water by the plaintiff from his residential house. A decree for permanent injunction was also sought against the defendant No.4 to restrain him from demolishing the drain or causing obstruction in the How of waste water through the drain which would emanate from the residential house of the plaintiff. 3. On contest, the plaintiff suit was decreed and the learned Trial Judge passed a judgment for permanent injunction perpetually restraining the defendants from demolishing or blocking the suit drain used for drainage of waste water from the plaintiffs residential house running through the courtyard of defendants 1&2 shown as mark (B) in the Site Plan appended with the plaint. 4. The decree holder filed an Execution Petition on 19-06-2004 seeking execution of the aforementioned decree. On notice to the respondents, the non applicant, petitioner herein, tiled objections to the Execution Application and resisted the Execution Petition, inter alia, on the ground that same is time barred and merits dismissal. The learned Executing Court, vide impugned order, rejected the objections so raised and held that the Execution Petition is competent and maintainable. In the impugned order, after overruling the objections of the petitioner, the learned Executing Court directed for appointment of a Commissioner to ascertain the fact as to whether the decree under execution has, in fact, been obeyed or not. Mr. Mushtaq Mohamad Bhat, Advocate, was appointed as local Commissioner. Feeling aggrieved of the order, this revision petition has been filed. 5. Learned counsel for the petitioner submitted that the impugned order has been passed by the learned Executing Court by relying upon section 48 of the Code of Civil Procedure (CPC) as it appears in J&K Laws Vol. II. Mr. Mushtaq Mohamad Bhat, Advocate, was appointed as local Commissioner. Feeling aggrieved of the order, this revision petition has been filed. 5. Learned counsel for the petitioner submitted that the impugned order has been passed by the learned Executing Court by relying upon section 48 of the Code of Civil Procedure (CPC) as it appears in J&K Laws Vol. II. He further submitted that the Execution Petition, on the face of it, was barred by time and the Executing Court ought not to have ordered for its execution. Learned counsel for the petitioner, while elaborating his argument, further submitted that Execution Application was filed on 10-05-1997 and the same was dismissed on 29-05-2004. The learned counsel had raised only the issue of limitation before the Executing Court and it is this issue alone which was raised by him before this Court to persuade that in view of the provisions of law, occupying the field, the Execution Petition is barred by lime, so merits dismissal. The learned counsel referred to article 182 of the Limitation Act to persuade the Court to take a view that an application for execution of a decree can be filed within three years or where a certified copy of a decree or order has been registered, then within six years, lie also referred to section 48 of the CPC as it appears in J&K Laws, vol. III and submitted that the said section provides that no application to execute a decree granting an injunction shall be made upon any fresh application presented after expiration of twelve years from the date of decree sought to be executed. Learned counsel accordingly submitted that this Revision Petition deserves to be allowed. 6. Mr. Rathore, learned counsel for the respondent, while controverting the argument advanced by learned counsel for the petitioner, submitted that article 182 of the Limitation Act is not applicable to the injunction decrees and also submitted that section 48 of CPC excludes a decree of permanent injunction from the purview of Limitation Act. Mr. Rathore also submitted that for institution of suit for permanent injunction, no period of limitation is provided under the Limitation Act and it is for this reason that no period of limitation is provided for even seeking execution of such a decree. He further referred to and relied upon a judgment reported in AIR 1987 Kerala 125. Mr. Rathore also submitted that for institution of suit for permanent injunction, no period of limitation is provided under the Limitation Act and it is for this reason that no period of limitation is provided for even seeking execution of such a decree. He further referred to and relied upon a judgment reported in AIR 1987 Kerala 125. Learned counsel for the respondent also made a passing reference to article 136 of the Limitation Act (Central). He accordingly submitted that this Revision Petition merits dismissal. 7. In order to appreciate the issues raised, it becomes imperative to reproduce section 48 of CPC as it appears in J&K Laws, Vol. III, section 48 of CPC as it appears in J&K Laws, Vol.II, 4th Edition and article 182 of the Limitation Act : "48. Execution barred in certain cases (1) Where an application to execute a decree granting an injunction has been made, no order for the execution of the same decree shall he made upon any fresh application presented after the expiration of twelve years from : (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order direct any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect, of which the applicant seeks to execute the decree. (2) Nothing in this section shall be deemed: (a) to preclude, the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time, within twelve years immediately before, the date of the application ; (b) Omitted. [Exception- In application for execution of a decree against an evacuee, whether passed singly against, him or jointly with a person other than an evacuee, the period from 6th Poh, 2005 to 21st Bhadu, 2006 and the time during which the Jammu and Kashmir Evacuees (Administration of Property) Act, Svt. 2006 remains in force shall be. excluded from the period of twelve years prescribed in this section.]" J&K Laws Vol. II. 4th Edition. "48. 2006 remains in force shall be. excluded from the period of twelve years prescribed in this section.]" J&K Laws Vol. II. 4th Edition. "48. Execution barred in certain cases-(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application, presented after the expiration of twelve years from (a) the date of the decree sought to he executed, or (b) 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, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute, the decree. (2) Nothing in this section shall be deemed (a) to preclude, the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where, the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve year immediately before the date of the application; (b) Omitted- [Exception- In application for execution of a decree, against an evacuee, whether passed singly against him or jointly with a person other than an evacuee, the period from 6th Poh, 2005 to 21st Bhadu, 2006 and the time during which the Jammu and Kashmir Evacuees (Administration of Property) Act, Svt. 2006 remains in force shall be excluded from the period of twelve years prescribed in this section.]"(Emphasis supplied) "Description of application Period of limitation Time from which period begins to run. 182. For the execution of a decree or order of any Civil Court not provided for [by Article 183 or] by section 48 of the Code of Civil Procedure. Three years or where a certified copy of the decree or order has been registered six years. .. 183. To enforce a judgment, decree or order of the Supreme Court." Twelve years. .. 8. Before dealing with the submission of the learned counsel for the parties, it becomes necessary to state that in the J&K Laws, Vol. III, words `not being a decree in section 48 CPC are missing which changes the entire tenor and text of the section. To enforce a judgment, decree or order of the Supreme Court." Twelve years. .. 8. Before dealing with the submission of the learned counsel for the parties, it becomes necessary to state that in the J&K Laws, Vol. III, words `not being a decree in section 48 CPC are missing which changes the entire tenor and text of the section. Learned counsel for the parties fairly conceded that the section 48, as it appears in J&K Laws, vol. II, 4th Edition, is the correct provision of law, thus the said provision has to be considered for deciding this Revision Petition. 9. Section 48 CPC opens with the words "Execution barred in certain cases". On the plain language of section 48(1) what is provided is that where an application to execute a decree, not being a decree granting an injunction, has been made, no order for execution of the same decree shall be made upon any fresh application presented after expiration of twelve years from the date of decree sought to be executed. From a plain reading of the said section, it becomes writ large on the face of the statute that execution of an injunction decree is not barred and execution of other decrees would be barred if same are made after expiration of twelve years from the date of decree sought to he executed. The intention of the legislators is not to be found in an astrological horoscope but is to be traced from the words of the statute. Section 48(1), in unambiguous terms, excludes a decree of injunction from its purview. The injunction decree thus can be put into execution at any point of time. 10. Article 182 of the Limitation Act provides that the period for an application for execution of a decree or order of any Civil Court not provided in article 183 of the Limitation Act or by section 48 of CPC, would be three years from the date of decree or order or where a certified copy of a decree or order has been registered, it would be six years. Perusal of article 182 of the Limitation Act read in conjunction with section 48 CPC, demonstratively, shows that those decrees for which no period of limitation for seeking execution thereof is provided in section 48 CPC, one has to fall back upon article 182 of the Limitation Act. Perusal of article 182 of the Limitation Act read in conjunction with section 48 CPC, demonstratively, shows that those decrees for which no period of limitation for seeking execution thereof is provided in section 48 CPC, one has to fall back upon article 182 of the Limitation Act. The important question crops up a to whether section 48(1) CPC does not provide any period of limitation or docs it completely exclude a decree of permanent injunction from the purview of Law of limitation to seek in execution. As already stated, section 48(1) CPC excludes a decree of permanent injunction from its purview in view of words `not being decree against an injunction appearing in the said provision. In a plain interpretation of the statute and on the basis of the language used therein, it is clear that, a decree granting any injunction excluded from the operation of section 48 which section covered under the caption "limit of time for execution". Section 48 referred some kinds of decrees which cannot be executed if Execution Application is not filed within a time limit provided by section. Other decrees which are not covered by section 48 are covered article 182 of the Limitation Act. It is in this backdrop that reference is made to section 48 CPC in article 182 of the Limitation Act. 11. There is yet another aspect of the mailer which requires consideration. The Limitation Act provides time period for institution of suits, but no time period is provided for institution for suit for permanent injunction. A suit for permanent injunction is instituted to remedy a wrong which can be continuous in nature. That, is how legislators, in their wisdom, have not provided any period of time for institution of such kind of suits. It is on this analogy that the legislators have not provided any period for seeking execution of the decree for permanent injunction which decree is excluded from the operation of Law of Limitation by section 48 CPC. 12. For the above stated reasons, this Revision Petition, being meritless, is dismissed along with CMPs. Registrar Judicial to circulate copies of this judgment to all the Courts of the Principal District & Sessions Judges, who will clarify the position about section 48 CPC to all the subordinate Judges falling within their respective Districts. 13. Record to be send back.