Madras High Court
Basavaraj vs Narayanasamy on 20 July, 2018
Author: N.Seshasayee
Bench: N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgment Reserved on : 24.04.2018 Judgment Pronounced on : 20.07.2018 CORAM : THE HONOURABLE Mr.JUSTICE N.SESHASAYEE C.R.P.(NPD).No.4059 of 2011 Basavaraj ... Petitioner Vs 1. Narayanasamy 2. Nagaraj 3. Jayaraj 4. Sathappa 5. Muniraj 6. Kaveriyamma ... Respondents Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India against the judgment and decreetal order of the R.E.P.No.2 of 2009 in O.S.No.235 of 1997, on the file of the District Munsif, Denkanikottai dated 01.08.2011. For Petitioner : Mr.V.Lakshminarayanan For Respondents : Mr. J.Hariharan [For R1, R2 & R5] No Appearance [For R3, R4 & R6] ORDER
This Revision under Article 227 of the Constitution is directed against the order of the Execution Court in dismissing E.P. 2 of 2009 which was filed for executing a decree of mandatory injunction, on grounds of bar of limitation.
2. The facts relevant for the current purpose are:
a)On 20-01-2005, the petitioner had obtained a decree for declaration of his right of pathway over the suit property, a consequential decree for prohibitory injunction that the defendants should not interfere with petitioner's said right of way, and for mandatory injunction to clear the obstruction on the pathway if it had been made.
b)The petitioner had obtained the copy of the said decree on 16.03.2005. He laid the Execution petition on 13-10-2008.
c)The Execution Court has held that, inasmuch as the time prescribed under Article 135 of the Limitation Act, 1963, for seeking execution of a decree of mandatory injunction, is three years, the Execution petition ought to have been filed latest by 15-03-2008, and since the E.P. was filed only on 13-10-2008, the same is barred by limitation.
2. Placing strong reliance on the authority in Onidpudur Weavers Co-operative Production and Sales Society Ltd., Rep.by its Special Officer, & Others Vs Velumani & Others [AIR 1977 S.C. 1259], the learned counsel for the petitioner would argue, that the decree is not the one for mandatory injunction simpliciter, but it is an allied relief to the decree of declaration of petitioner's right of pathway and also a prohibitory decree that such right should not be interfered with. Consequently, de hors the mandatory injunction, the petitioner is entitled to enforce the prohibitory injunction. Reliance was also placed on M.A.Raja Vs S. Vedhantham Pillai & four others [2000(II) CTC 199], Kannu Gounder Vs Natesa Gounder [2004-3-LW 43] and Sampath Nattar Vs Gnana Sivam (deceased) & Others [indiankanoon.org/doc/488148]
3. Heard the learned counsel for the Respondent/Judgement Debtor. His arguments are along the lines of the reasoning of the Execution Court.
4. The facts now before this court bear a strong similarity to the facts in Onidpudur Weavers Co-operatives case [AIR 1977 SC 1259]. In that case, a decree was passed declaring plaintiff's right of user of a road, coupled with a decree for injunction, and when the decree of injunction was disobeyed, the decree holder approached the Execution Court with a prayer to appoint a commission for removing the obstruction made and for arrest of the Judgement-debtor. The Execution Court appointed the Commissioner for removing the obstruction made. This was challenged and the matter reached the Supreme Court. It was contended before the Supreme Court that the order passed by the Execution Court could be made only where a mandatory injunction was required to be executed and not otherwise. Rejecting the same the Supreme Court held:
5. In this case, there is a decree declaring the respondents' right to use the pathway and an injunction restraining the appellants from interfering with such right. When the respondents, decree-holders, found that the pathway is so covered with thorny tushes that the right of pathway declared in their favour could not be properly exercised, normally they are entitled to clear the thorny shrubs for facilitating their use of the pathway. But when it was found that the appellants, judgement-debtors, resisted that attempt of the respondents, decree holders, in clearing the thorny shrubs found on the pathway, naturally they have to approach the Executing Court complaining that the judgment-debtors who have been restrained from interfering with the user of the pathway by the decree-holder are obstructing the clearance of the thorny shrubs and therefore they have virtually disobeyed the orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the Code is not invoked by the decree-holders on the ground that the appellants as judgment-debtors have not performed any positive act directed by the Court but that they are preventing the clearance of the shrubs by the decree-holders for the proper use of pathway. Such interference with the clearance of the thorny shrubs will amount to an indirect attempt on the part of the judgment-debtors to interfere with the plaintiffs' user of the pathway. If, in fact, the judgment-debtors, have not obstructed or prevented the clearance of the shrubs by the decree-holders, they would not have approached the Executing Court for the appointment of a Commissioner to clear the thorny shrubs. ..... ..... ..... ..... ..... ..... ...... ...... In Sampath Nattar case [indiankanoon.org/doc/488148], this court had an occasion to hold:
8. In a similar case in 1993(1) MLJ 234 [Azizullah and Anr. Vs. Sakthivelu and Ors.], decree was granted for possession of suit site to plaintiff with mandatory injunction to defendant to remove the superstructure thereon. Holding that even if the decree for mandatory injunction is barred, the decree could be executed as if decree for possession, Justice Abdul Hadi has held : Where a decree in suit grants possession of the suit site and also grants a mandatory injunction directing the defendants to remove the superstructure put up by them on the suit site, an execution petition filed by the plaintiff cannot be dismissed in toto merely because the decree for mandatory injunction cannot be executed because of bar of limitation under Article 135 of the Limitation Act. The Court cannot dismiss the E.P. in toto, but should order the E.P., relating to the possession of the suit land. In such a case, the Court should grant an opportunity to the Judgment-Debtors to remove the superstructure. If within the time allowed the Judgment-Debtors do not remove the superstructure, then the Executing Court shall direct delivery of both the site and superstructure to the Decree-Holder. In M.A. Raja v. S.Vedhantham Pillai and 4 others [2000 (II) CTC 199], His Lordship, S.S.Subramani, J., has held:
27. Petitioners has no case that part of permanent injunction is barred by limitation and what he says is that mandatory decree cannot be executed. By granting mandatory injunction, defendant is bound to remove the structures that was in existence at the time of institution of suit and passing decree. Plaintiff does not want defendants to do it. Plaintiffs only enforce that part of decree that is enforceable and they are not compelling defendants to remove it. In view of the prohibitory injunction that plaintiff is entitled to make use of the pathway without any obstruction defendants are also barred from asserting their right. Therefore plaintiffs are well within their rights to invoke the provisions under Order 21, Rule 32(5), but taking assistance of court that the obstruction still continues and their right of enjoyment is being affected by wrongful assertion of defendants and the same is to be removed. For the said purpose plaintiff are seeking the assistance of court for appointment of Commissioner and if court accepts the same. It cannot be said that the order is illegal and one without jurisdiction. In Kannu Gounder case [2004-3- LW 43], the Court was visited with a case where a construction made before a suit for declaration of plaintiff's title, recovery of possession and for mandatory injunction for removal of the building. When the E.P. is laid for delivery of possession, it was resisted on the ground that since there was a decree for removal of the building, the execution should have been for enforcing the mandatory decree, and since the E.P. is filed beyond three years as stipulated in Article 135 of the Limitation Act, 1963, the same was barred. Dismissing this argument, this Court held:
10. Learned advocate for the revision petitioner would once again submit that the decision rendered in 1995(2) M.L.J.(S.C.) 107 is applicable only to the case, where the defendant/judgment debtor had put up construction during the pendency of the proceedings i.e., pendente lite, only and in the present case, the construction was put up by the defendant/judgment debtor prior to the filing of the suit and therefore, the construction cannot be removed. Though the ruling deals with the construction put up during the pendency of the suit, the same principle would be applicable even to the construction put up prior to the filing of the suit also. It is needless to point out that the construction put up by the defendant/judgment debtor whether before or after filing of the suit, is liable to be removed if there is a prayer for possession. When there is a decree for delivery for vacant possession which would mean and include, delivery after removing all the structures or anything in the suit property and therefore, the plaintiff/decree holder is entitled to take delivery of possession after removal of any manner of construction or structures in the suit property ..... ...... ..... ....... ...... That Article 135 of the Limitation Act, will apply only to a decree for mandatory injunction simpliciter and it is not applied to an execution of a decree for prohibitory injunction coupled with mandatory injunction, for which time Article 136 alone will apply.
5. The prayer before the Execution Court was to issue notice to the Judgement-Debtor under Order XXI Rule 32 for issuing a direction to him to remove the obstruction, and if the same is disobeyed, then to remove the obstruction in terms of the mandatory injunction. Here, the enforcement of mandatory injunction is intended essentially as a tool to enforce the prohibitory injunction part of the decree. In other words, it is not a decree for mandatory injunction simpliciter that is sought to be executed primarily. This is similar to the situations which visited the court in any of the cases cited above, where the Courts at various points of time have subscribed themselves to the same view, that execution petition is not barred by limitation under Article 135 of the Limitation Act.
6. To conclude, this court holds that the Execution Court was in error in dismissing R.E.P.No.2 of 2009 in O.S.No.235 of 1997, Vide its dated 01.08.2011, on grounds of limitation and accordingly this revision is allowed and the order in E.P.No.2 of 2009 is set aside. The matter is now remanded back to the Execution Court for it to proceed in accordance with the law.
7. Accordingly, this Civil Revision Petition is allowed. No costs.
20.07.2018 ssn/ds Index : Yes/No Speaking Order / Non-speaking order To The District Munsif, Denkanikottai.
N.SESHASAYEE, J., ssn/ds C.R.P.(NPD).No.4059 of 2011 20.07.2018