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Madras High Court · body

2014 DIGILAW 2075 (MAD)

T. M. Mahendran v. Muthuirulandi Thevar (Late)

2014-07-11

V.M.VELUMANI

body2014
Judgment : 1. The Judgment and Decree passed in E.A.No.12 of 2011 in E.P.NO.3 of 2009 in O.S.No.74 of 1985 on the file of the District Munsif Court, Mudukulathur dated 17.02.2012, is under challenge in this Civil Revision Petition. 2. The respondent herein filed O.S.No.74 of 1985 on the file of the District Munsif Court, Mudukulathur against the father and mother of the petitioner for specific performance of the agreement of sale dated 21.09.1982. The said suit was decreed by the judgment and decree dated 30.06.1987. The father of the petitioner filed A.S.No.1104 of 1998 against the said judgment and decree. Meanwhile, the respondents filed E.P.No.13 of 1988. The said E.P. was closed on 09.04.1991 due to pendency of the first appeal. During the pendency of the first appeal, the petitioner's father died and the petitioner was impleaded as appellant and contested the case. The first appeal was dismissed on 13.03.2001, confirming the judgment and decree of the lower Court. Now, the respondent filed E.P.No.3 of 2009 for execution of the decree. Evidence was let in on behalf of the respondent. 3. While E.P. was posted for evidence, the petitioner filed E.A.No.12 of 2011 for rejection of the execution petition on the ground that the decree is barred by limitation and the same should have been filed within three years from the date of decree passed in A.S.No.1104 of 1998. He submitted that only Article 135 of Limitation Act is applicable to the facts of the case. 4. On the other hand, the respondent contended that only Article 136 is applicable to the facts of the case and Execution Petition is not barred by limitation. 5. The District Munsif considered all the facts and circumstances of the case came to the conclusion that only Article 136 of the Limitation Act is applicable and the decree could be executed within 12 years. The District Munsif taken note of the fact that after recording evidence of the respondent, the petitioner has come out with an execution application for rejection of Execution Petition at a belated stage. The District Munsif also held that there is no specific provision for dismissing the Execution Petition, as in the case of rejection of plaint. For these reasons, the District Munsif dismissed the execution application. Against the said order, the present Civil Revision Petition is filed. 6. Heard Mr. H.Velavadhas, learned counsel for the petitioner and Mr. The District Munsif also held that there is no specific provision for dismissing the Execution Petition, as in the case of rejection of plaint. For these reasons, the District Munsif dismissed the execution application. Against the said order, the present Civil Revision Petition is filed. 6. Heard Mr. H.Velavadhas, learned counsel for the petitioner and Mr. K.Kumaravel, learned counsel for the respondent. 7. The learned counsel for the petitioner vehemently argued that the decree in question is a mandatory decree and Article 135 of Limitation Act 1963 only is applicable and Execution Petition ought to have been filed within three years from the date of dismissal of the first appeal. A reading of Article 135 of the Limitation Act reveals that it relates to execution of a decree of “Mandatory Injunction”. A decree granting specific performance cannot be termed as decree for mandatory injunction. Article 136 of the Limitation Act relates to executors of any decree other than a decree granting mandatory injunction. The period of limitation is 12 years. In the judgment reported in AIR 2001 SC 2967 [ANTONYSAMI V. ARULANANDAM PILLAI] cited and relied on by the counsel for petitioner in Paragraph 10, it has been held that Article 136 of the Limitation Act is applicable to execution of decree for specific performance. Paragraph No.10 of the said judgment reads as follows: “10. The provision of Limitation Act, 1963 which is applicable in this case is Article 136, which reads as under : Description of application Period of Limitation Time for which period begins to run 136. 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. 8. The present Execution Petition has been filed within 12 years from the date of judgment and decree dismissing the first appeal. 8. The present Execution Petition has been filed within 12 years from the date of judgment and decree dismissing the first appeal. Therefore the contention of the learned counsel for the petitioner that Article 135 of the Limitation Act only is applicable is untenable and I hold that only Article 136 is applicable to execution of decree for specific performance. 9. The learned counsel for the petitioner also relied on a judgment reported in AIR 2001 SC 279 [RATANSINGH V. VIJAYSINGH]. He placed reliance on paragraph No.9 of the judgment, which reads as follows: “9. Filing of an appeal would not affect the enforceability of the decree, unless the appellate Court stays its operation. But if the appeal results in a decree that would supersede the decree passed by the lower Court and it is the appellate Court decree which becomes enforceable. When the appellate order does not amount to a decree there would be no supersession and hence the lower Court decree continues to be enforceable.” 10. The petitioner himself has stated that from the date of decree passed in the first appeal only the specific performance decree in favour of the respondent can be enforced and having failed to file the Execution Petition within three years from the date of the said decree, the Execution Petition is barred by limitation. 11. As I already held that Article 136 of the Limitation Act is applicable as per the judgment reported in AIR 2001 SC 2967 , reliance placed by the petitioner in paragraph No.9 of the judgment reported in AIR 2001 SC 279 has no relevance. The District Munsif has considered the facts and law and exercised his power as per law. Hence, there is no illegality or irregularity in the said order. Therefore, the Civil Revision Petition is dismissed as devoid of merits. The District Munsif, Mudukulathur, is directed to conclude the Execution Proceedings as expeditiously as possible. Consequently connected Miscellaneous Petition is closed.