Himachal Pradesh High Court
Varinder Kumar vs Sunil Khanna & Another on 27 December, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Civil Revision No. 62 of 2006 Reserved on: 19.10.2016 Decided on: 27.12.2016 .
Varinder Kumar ....Petitioner
Versus
Sunil Khanna & another
....Respondents
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
of Whether approved for reporting?1 Yes.
For the petitioner: Mr. Vinay Kuthiala, Sr. Advocate
rt with Mr. Aditya Sood, Advocate.
For the respondent: Mr. B.B. Vaid, Advocate.
Dharam Chand Chaudhary, Judge
This revision petition is directed against the order dated 19.1.2006, passed by learned Civil Judge (Junior Division) Court No. IV, Shimla, whereby an application under Section 14(2) read with Section 151CPC filed in Execution Petition No. 7/10 of 2003, has been dismissed and as a consequence thereof, the Execution Petition has also been dismissed being time barred.
2. The challenge to the impugned order is on the ground, inter alia, that learned court below has exceeded its jurisdiction and rather exercised jurisdiction not vested in it under Law while dismissing the application and declining the prayer to condone delay as was occurred in filing the Execution Petition to execute 1 Whether the reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 2 the decree passed in the suit filed by the petitioner-plaintiff. Learned trial court is stated to have failed to consider that no limitation is prescribed for enforcing or executing a decree qua perpetual injunction. Learned trial court allegedly erred while .
arriving at a conclusion that the benefit of Section 14(2) of the Limitation Act could have only been availed at the time of institution of first execution petition and not subsequent execution petitions. The Law which provides that the benefit of Section 14(2) of of the Limitation Act is available even in execution proceedings also has not been taken into consideration.
3. In order to decide the fate of this petition, it is rt desirable to take note of the facts of the case in a nut shell. The petitioner herein had filed Civil Suit No. 40/1 of 1990 for seeking declaration to the effect that he is exclusive owner-in-possession of three storeyed building bearing No. 167 Ganj Bazar, Shimla. He alongwith the defendant has raised common wall and stairs in terms of the agreement arrived at between them. However, the defendant in contravention of the agreement illegally opened the windows of his house upon the common wall towards the shop of the plaintiff and also put iron railing on the stairs as well as placed water tank on the common space. Therefore, the decree for mandatory injunction directing the defendant to close the windows he opened on the stairs permanently and remove iron shutter and railing on the common stairs as well as the water tank he placed over the common space was sought to be passed. The defendant ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 3 was also sought to be restrained permanently from opening any new door, window and ventilator etc. towards the shop of the plaintiff.
4. The learned trial court vide judgment and decree .
dated 20.7.1993 has decreed the suit for the relief of declaration and also mandatory injunction declaring thereby the plaintiff to be owner-in-possession of the common wall between shop No. 166 and 167 situate over khasra Nos. 501 and 500, Ganj Bazar, of Shimla, and directing the defendant by way of mandatory injunction to remove the shutter and railing placed over the common space shown with letters CDHI in the Map Ex.P-3. He rt was also directed to remove the water tank he placed over the common vacant space Mark-C in the Map. The Map Ex.P-3 was ordered to be made as a part of the decree. However, learned trial court has dismissed the suit for the relief of permanent prohibitory injunction, i.e., a direction sought against the defendant not to open any window and ventilator etc. towards the building of the plaintiff in future. The suit, as such, was partly decreed.
5. Learned Lower Appellate Court in Civil Appeal No. 91- S/13 of 1003 has decreed the suit for the relief of permanent prohibitory injunction also while dismissing the appeal preferred by the defendant, respondent herein, and allowing the cross appeal filed by the petitioner-plaintiff vide judgment dated 17.8.1998.
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6. The second appeal registered as RSA No 485 of 1998 was also dismissed by this Court on 29.4.1999.
7. The Execution Petition No. 62-S/10 of 2000 filed by the petitioner in the Court of learned District Judge, however, was .
withdrawn by him vide order dated 17.10.2000, Annexure P-3, Which reads as follows:
"The Ld. Advocate for the DH says that the DH, does not want to pursue this execution petition and withdraws the same. His statements to this effect of recorded separately. In view of this, the present execution is dismissed as withdrawn. Record be completed and consigned."
rt
8. On the withdrawal of the previously instituted execution petition vide order ibid, the petitioner had filed fresh execution petition registered as Execution Petition No. 3-10/01 in the trial court. The same was dismissed on 5.11.2001 in default. Thereafter, he filed execution petition No. 7/10 of 03/2002 on 10.7.2002. The same being time barred, he filed an application under Section 14(2) of the Limitation Act for condonation of delay on the ground that the previous Execution Petition No. 62-S/10 of 2000 withdrawn vide order Annexure P-3 was wrongly filed in the Court of learned District Judge, Shimla.
9. The respondent-judgment debtor has contested the application and also filed objections to the execution petition. Learned trial court by allowing the parties to exchange their respective affidavits and hearing the parties on both sides has ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 5 dismissed the application under Section 14(2) of the Limitation Act vide order which is under challenge before this Court in the present petition.
10. On analyzing the rival submissions made on both .
sides and going through the record, the only question arises for determination in this petition is as to whether the court below has erred in dismissing the application filed under Section 14(2) of the Limitation Act and consequently the execution petition also being of time barred which has resulted in miscarriage of justice to the petitioner and the same needs redressal by this Court in exercise of its revisional jurisdiction.
11. rt The point in issue, as a matter of fact, is purely legal in nature for the reason that the benefit of Section 14 of the Limitation Act is available only in those cases where the aggrieved party was prosecuting the proceedings in a Court with due diligence involving same matter of dispute and prosecuting such proceedings in good faith and also that the Court where the proceedings were instituted had also entertained the same. However, on account of jurisdictional defect or other cause of like nature, it was not possible to that Court to entertain proceedings and, as such, returned the same for presentation in appropriate Court.
12. Adverting to the case in hand, the execution proceedings to execute the judgment and decree which on the dismissal of RSA No 485 of 1998 has attained finality should have ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 6 been initiated in the trial court, i.e., before learned Sub Judge, Ist Cass(IV), Shimla (now Civil Judge Junior Division). The execution petition, however, was wrongly filed in the Court of learned District Judge, Shimla. The same was dismissed as withdrawn without .
any liberty reserved in favour of the petitioner to file fresh execution petition in the competent Court seeking benefit of the exclusion of the period spent in prosecuting the execution petition in the Court of learned District Judge, Shimla. Anyhow, without of there being any such liberty reserved in favour of the petitioner, he filed execution petition No. 3-10/01, in the court below, i.e., Civil Judge Junior Division, Court No.IV, Shimla. That petition, rt admittedly, was dismissed in default on 5.11.2001. No efforts seem to have been made to get the same restored to its original number and file. However, to the contrary, a fresh execution petition bearing No. 7/10 of 03/2002 was presented before learned Sub Judge Court No.IV, Shimla, on 10.7.2002. It is alongwith this execution petition that an application under Section 14(2) of the Limitation Act was filed for seeking condonation of delay on the ground that the petitioner was bonafidely prosecuting the execution petition bearing No 62-S/10 of 2000 in the Court of District Judge, Shimla. The court below has, however, refused to condone the delay and dismissed the application as also the execution petition.
13. Learned trial judge has not committed any illegality and irregularity in dismissing the application under Section 14 of ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 7 the Limitation Act. However, the said orders should have been ordered to be confined only qua the execution of the decree for mandatory injunction because the proviso to Article 136 of Limitation Act prescribes no limitation for seeking the execution of .
a decree for permanent prohibitary/perpetual injunction. The reasoning that the petitioner, at the most, could have sought exclusion of the period spent in pursuing execution petition No. 62-S/10 of 2000 in the Court of Leaned District Judge in of Execution Petition No. 3-10/01 filed after order Annexure P-3 passed by learned District Judge, Shimla, had the same been time barred and condonation of delay if any could have not been sought rt during the course of proceedings subsequent execution petition i.e. 7/10 of 2003/2002 filed on 10.7.2002, i.e., after dismissal in default of the above said Execution Petition No. 3-10/01 on 5.11.2001 are just and in accordance with Law. It is worth mentioning that the exclusion of the period spent in pursuing the remedy before a Forum which is not competent can only be sought while presentation of the plaint/petition in competent court after return/withdrawal thereof from the Forum which had no jurisdiction to entertain or try the same. Therefore, when immediately after the dismissal of the execution petition by learned District Judge vide order Annexure P-3, the exclusion of period spent in pursuing the execution petition in the Court under Section 14 of the Limitation Act should have been sought in the execution petition filed immediately thereafter had the same been ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 8 time barred. The benefit of Section 14 of the Act is not available at a stage when fresh execution petition filed after order Annexure P- 3 was dismissed as withdrawn. Therefore, learned trial judge has rightly refused to extend the benefit of Section 14 of the Act to the .
petitioner while dismissing the application under Section 14 of the Limitation Act for the reason that the decree for mandatory injunction cannot be allowed to be executed after the period of limitation, i.e., 12 years prescribed under Article 136 of the of Limitation Act.
14. The petition qua execution of the decree in respect of the permanent prohibitory injunction is, however, can be filed at rt any stage for the reason that the proviso to the Article 136 reveals that no limitation has been prescribed for execution of a decree of this nature. Support in this regard can be drawn from the judgment of the High Court of Rajasthan in Legal Representatives of Mega Ram and another v. Kana Ram and others, AIR 1993 Rajasthan 208, the extract whereof reads as follows:
"A perusal of the decree under execution shows that it was for mandatory as well for prohibitory injunction.
It stood satisfied so far it concerned with mandatory part of th injunction by the removal of the encroachment existing on the disputed land on the date on which it was passed. The decree in respect of prohibitory injunction was subsisting even after the disposal of first and second execution applications. The third execution application has been moved for ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 9 the execution of the decree in respect of the prohibitory injunction. It is perfectly executable under O. XXI, R. 32 C.P.C.
There is also no substance in the second objection relating to limitation. Art. 136, Limitation .
Act, deals with the limitation for execution of decrees other than a decree granting mandatory injunction. The limitation is 12 years from the date the decree becomes enforceable. The decree for prohibitory injunction became enforceable when the judgment- debtors made fresh encroachment on the disputed of land. The decree under executi8on itself was passed on September, 20, 1983. As such the third execution application was well within limitation."
rt
15. Similar, is the gist of the judgment of the High Court of Allahabad in Ram Singh and others v. Salig Ram and others, AIR 1975 Allahabad 11:
"The controversy has now been set at rest by the Limitation Act, 1963. Art. 135 of the new Act prescribes a period of limitationof three years for an application for enforcement of a decree granting a mandatory injunction whereas the proviso to Art. 136 expressly stipulates that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. The distinction between a mandatory injunction and a perpetual (prohibitory) injunction is obvious. Art. 135 relates to mandatory injunction only. Art. 136 covers within its scope perpetual injunctions. An application to enforce a decree granting a perpetual injunction is not subject to any ::: Downloaded on - 15/04/2017 21:49:40 :::HCHP 10 limitation. In the instant case the decree sought to be enforced was a decree granting perpetual (prohibitory) injunction and an application under Order 21, Rule 32, C.P.C. was moved when the disobedience of that decree was made by the appellants. The contention .
that the application was barred by time has, therefore, no merits."
16. In view of what has been said hereinabove, this petition partly succeeds and the same is accordingly allowed.
of There shall be a direction to learned trial court to entertain the execution petition No. 7/10-03/2002 qua the execution of the decree of permanent prohibitory injunction if any sought and rt decide the same in accordance with law. The parties through learned counsel representing them are directed to appear in the Court below on 24.02.2017. The record be returned so as to reach in the concerned Court well before date fixed.
15. The petition is accordingly disposed of, so also the pending application(s), if any.
December 27th, 2016 (Dharam Chand Chaudhary)
(bhatt) Judge
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