Madras High Court
Sampath Nattar vs Gnana Sivam [Deceased] And Ors. on 21 February, 2007
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. Aggrieved by the Order of the Execution Court made in E.P. No. 115/1999, ordering delivery of possession, Plaintiff/ Judgment-Debtor in O.S. No. 60/1987 has preferred this revision.
2. This revision arises on the following facts:
2.1. The subject matter of the suit O.S. No. 60/1987 is in respect of Natham S. No. 17/1 at Pootai Road, measuring East West 10' North South 45'. The Revision Petitioner/Plaintiff filed O.S. No. 60/1987 for declaration of his title to the suit property and alternatively for possession. It is stated after obtaining the Order of exparte Interim Injunction, Revision Petitioner/Plaintiff had put up a construction in the suit property on the basement constructed by the Defendants. In the said suit, Defendant/late first Respondent made a counter claim for Mandatory Injunction for removal of superstructure put up subsequent to the suit and for possession. The trial Court dismissed O.S. No. 60/1987 and Defendant's counter claim was decreed. Plaintiff's appeal and second appeal were also dismissed.
2.2. For executing the Decree passed in counter claim, Defendant filed E.P. No. 104/1994 for delivery. The same was transferred to District Munsif Court, Kallakurichi and renumbered as E.P. No. 136/1996 and on 05.02.1999, the said Execution Petition was closed. Thereafter, within a week, Defendant filed E.P. No. 115/1995 for delivery of possession. Pointing out dismissal of appeal and second appeal, Execution Court has ordered removal of superstructure which is impugned in this revision.
3. Onbehalf of the Revision Petitioner, the main point urged is the question of limitation. The learned Counsel for the Revision Petitioner/Plaintiff contended that S.A. No. 1027 /1994 was dismissed on 17.11.1994 and Execution Petition for executing Mandatory Injunction ought to have been filed within three years from 17.11.1994 as per Article 135 of the Limitation Act. It was submitted that Execution Petition filed in 1999 beyond the period of three years is barred by limitation and the impugned Order passed thereon is unsustainable.
4. Drawing the attention of the Court to the various proceedings, the learned Counsel for the Respondent submitted that the Revision Petitioner having failed in all his attempts had made this last attempt to protract the execution proceedings. Pointing out filing of earlier Execution Petition No. 104/1994, the learned Counsel for the Respondent submitted that the present E.P. No. 115/1999 is only a continuation of earlier Execution Petition and not barred by limitation. Placing reliance upon 1993 (1) MLJ 234 and other decisions, it was further submitted that the Decree in the counter claim was for Mandatory Injunction and it is also a Decree for handing over possession of the suit land and hence, Article 135 of the Limitation Act is not applicable.
5. Under Article 135 of the Limitation Act, "for enforcement of a Decree granting a Mandatory Injunction" three years time is stipulated "from the date of the Decree, from where a date is fixed for performance of such Decree". S.A. No. 1027/1994 was dismissed on 17.1.1994. The only objection raised is, Decree in counter claim is not executable after 17.11.1997 and Execution Petition filed in 1999 is barred by limitation.
6. Of course, under Article 135 of the Limitation Act, three years time is stipulated for executing a Decree for Mandatory Injunction. It is seen from the records that earlier Defendant has filed E.P. No. 104/1994 for delivery, before Sub Court, Villupuram. On the constitution of Sub Court at Kallakurichi, the Execution Petition was transferred to District Munsif Court, Kallakurichi and renumbered as E.P. No. 136/1996 and that Execution Petition was kept pending for some time. On 05.02.1999, the Execution Petition was closed stating "with the consent of both sides and subject to the final disposal of the proceedings in S.A. No. 1027/1994, Execution Petition is closed at the present". Within a week thereafter, on 12.02.1999, E.P. No. 115/1999 was filed. E.P. No. 155/1999 is thus continuation of earlier execution Petition. Defendant/ Decree-Holder has been proved to have been filing successive applications for the execution of the Decree within the period of limitation. The language of Article 135 cannot be strained in favour of Judgment-Debtor, who have been protracting the proceedings in one way or other. In , [Deep Chand and Ors. v. Mohan Lal], the Supreme Court has held, "As a general rule the executing Court should not find ways to dismiss the execution application as barred by time unless it is established, beyond doubt, that such an application was beyond limitation". The observation of the Supreme Court in the said case is equally applicable to the case on hand.
7. It may be noted that Decree in counter claim is not only for Mandatory Injunction but also to deliver vacant possession. In the counter claim, Defendant has not only sought for demolition of superstructure but also prayed for delivery of vacant possession. In Column No. 10 of Execution Petition also, Defendant invoked Order 21 Rule 35 CPC claiming delivery of vacant possession. The Decree is not only for demolition of superstructure but also for handing over of possession.
8. In a similar case in 1993 (1) MLJ 234 [Azizullah and Anr. v. 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 dismis 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".
9. In a Decree for Permanent Injunction and for Mandatory Injunction, holding that Decree can be executed as if granted for Permanent Injunction, in [M.A. Raja v. S. Vedhantham Pillai and 4 Ors.], Justice S.S. Subramani has held as follows:
14. Reliance was also placed on the decisions reported in Bashir Ahmed v. Mendhi Hasan AIR 1982 All. 321; Harihar Pandey v. Mangala Prasad Singh ; Padmanabhan Pillai v. Sulaiman Kunju Ahamed Koya ; Ramalingam v. N. Thangavelu 1997 (2) LW 35.
15. On going by these decision I find that the decisions have only declared that when a Decree of mandatory and prohibitory injunctions are granted, Decree for Permanent Injunction could be executed though execution of mandatory injunction could be barred.
10. Though the Decree is for Mandatory Injunction, delivery of vacant possession is integral part of that Decree. Though the Decree is for mandatory injunction, since Plaintiff has put up construction pendente lite, Execution Court can Order demolition of superstructure and delivery of vacant possession. Plea raised on limitation is untenable. Frivolous objections raised by the Petitioner at various stages is also relevant to be noted. Earlier, Plaintiff had filed E.A. No. 990/99 under Section 47 CPC raising objection regarding the executability of the Decree. As against the Order of dismissal of that application, CRP No. 38/2001 was preferred and the same was also dismissed by the Order of this Court dated 20.01.2001. Thereafter, Plaintiff had filed an unnumbered application seeking for appointment of Advocate Commissioner to assess the market value and praying to direct the Defendants to receive the compensation amount. The unnumbered Application was also dismissed on 30.04.2001. In those proceedings, Plaintiff had not at all raised the plea of limitation. Having been unsuccessful to stall the proceedings, the Petitioner has now raised the plea of limitation, which is unsustainable. The Revision Petition is devoid of merits and is bound to fail.
11. In the result, the Order dated 07.08.2001 made in E.P. No. 115/99 in O.S. No. 60/1987 on the file of the Principal District Munsif Court, Kallakurichi, is confirmed and this Revision Petition is dismissed. No costs. Consequently, C.M.P. No. 13882/2001 is also dismissed.