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Ram Singh and ors. Vs. Salig Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2597 of 1973
Judge
Reported inAIR1975All11
ActsLimitation Act, 1963 - Schedule - Articles 135 and 136; Code of Civil Procedure (CPC) - Order 21, Rule 32
AppellantRam Singh and ors.
RespondentSalig Ram and ors.
Advocates:J.N. Chandra, Adv.
DispositionAppeal dismissed
Excerpt:
property - prohibitory injunction - articles 135 and 136 of limitation act, 1963 - decree of prohibitory injunction passed against appellant - judgment debtor fails to obey the decree - appellant filed appeal - on the grounds that application is time barred - limitation period of three years is only for mandatory injunction not for the prohibitory injunction - article 136 can be applied and appeal is not time barred. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment..........new act prescribes a period of limitation of three years for an application for enforcement of a decree granting a mandatory injunction whereas the proviso to article 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. article 135 relates to mandatory injunction only. article 136 covers within its scope perpetual injunctions. an application to enforce a decree granting a perpetual injunction is not subject to any limitation. in the instant case the decree sought to be enforced was a decree granting perpetual (prohibitory) injunction and an application under order 21,.....
Judgment:

T.S. Misra, J.

1. I have heard the learned counsel at great length and have also perused the orders passed by the courts below. It appears that a decree for prohibitory injunction was passed against the judgment-debtors appellants before me. An application under Order 21, Rule 32 of the Code of Civil Procedure wasmoved on the ground that the judgment-debtors have not obeyed that decree. The appellate court below has, on a consideration of the evidence on record, found that the judgment-debtors Ram Singh, Chandra Pal and Sukh Ram demolished the water channel leading from the disputed well to plot No. 218 and upto decree holders' plot No. 221 and also demolished the stone pillars etc. of the well. It was also held that these acts amounted to interference with decree-holder's right to irrigate their plots in question and it amounted to disobedience of decree for prohibitory injunction. On these findings the appeal was allowed and the application for execution was accepted. Against that order the appellants have come up in appeal.

2. It was argued by the learned counsel for the appellants that the execution application moved under Order 21, Rule 32, C.P.C. was barred by time inasmuch as that application was moved after about eight years of the passing of the decree. In support of his contention he placed reliance on a decision of the Lahore High Court in the case of Moti Ram v. Hans Raj, (AIR 1935 Lah 702). That decision, however, does not apply to the facts and circumstances of this case. That apart, this Court has taken a contrary view. (See Bhagwan Das v. Sukh-dei, (1906) ILR 28 All 300, and Ram Saran v. Chatar Singh, (1901) ILR 23 All 465). The controversy has now been set at rest by the Limitation Act, 1963. Article 135 of the new Act prescribes a period of limitation of three years for an application for enforcement of a decree granting a mandatory injunction whereas the proviso to Article 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. Article 135 relates to mandatory injunction only. Article 136 covers within its scope perpetual injunctions. An application to enforce a decree granting a perpetual injunction is not subject to any 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.

3. The learned counsel for the appellants conceded that he could not challenge that part of the order whereby immovable property worth about Rupees 2,000 belonging to the judgment-debtorswas ordered to be attached. His grudge rather is that an order for sale could not be made by the Court at this stage. I have perused the order passed by the appellate court below. The learned court below has not passed any order for immediate sale of the property which is ordered to be attached. There is no merit in this contention also.

4. No other point was urged.

5. The appeal is, therefore, dismissed.


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