Skip to content


Sarwan Lal and Anr. Vs. Kanti Prasad (deceased by L.R.'s) (01.01.1985 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2520 of 1974
Judge
Reported inAIR1986All1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 37; Limitation Act, 1963 - Schedule - Article 135
AppellantSarwan Lal and Anr.
RespondentKanti Prasad (deceased by L.R.'s)
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateRadha Krishna and ;Gorkash Krishna, Advs.
DispositionAppeal dismissed
Excerpt:
civil - injunction - section 47 and order 21 rule 37 of code of civil procedure, 1908 - mandatory injunction and prohibitory injunction in same suit - mandatory injunction barred by limitation - prohibitory injunction still maintainable and executable. - - 2. in spite of contest by the defendants the suit was decreed on 25-3-68. the municipal board, aligarh, filed an appeal but the same was dismissed on 30-10-1968. 3. on 23-3-1978 an execution was taken out for the recovery of costs and for committing the judgment debtors to civil prison for their failure to comply with the injunction. an objection as to maintainability of the suit on such a ground could well be taken during the trial but not before the executing court......restrained from encroaching the same and to refrain from obstructing free access to the road patri from any point in front of his land.2. in spite of contest by the defendants the suit was decreed on 25-3-68. the municipal board, aligarh, filed an appeal but the same was dismissed on 30-10-1968.3. on 23-3-1978 an execution was taken out for the recovery of costs and for committing the judgment debtors to civil prison for their failure to comply with the injunction. the appellants filed an objection under section 47, c.p.c., contending that decree for mandatory injunction had become barred by time and could no longer be executed. the objection was dismissed by the executing court but on appeal the order was modified and it was held that only decree for mandatory injunction.....
Judgment:

N.N. Mithal, J.

1. This is an execution second appeal. The respondent had filed a suit against the present J. D., appellant, and the Municipal Board for the relief of injunction that after removal of the fuel wood stalls from the roadside parti adjacent to the plaintiff's property the defendants may be permanently restrained from encroaching the same and to refrain from obstructing free access to the road patri from any point in front of his land.

2. In spite of contest by the defendants the suit was decreed on 25-3-68. The Municipal Board, Aligarh, filed an appeal but the same was dismissed on 30-10-1968.

3. On 23-3-1978 an execution was taken out for the recovery of costs and for committing the judgment debtors to civil prison for their failure to comply with the injunction. The appellants filed an objection under Section 47, C.P.C., contending that decree for mandatory injunction had become barred by time and could no longer be executed. The objection was dismissed by the executing court but on appeal the order was modified and it was held that only decree for mandatory injunction could not be executed because execution was launched more than three years after the decree in view of Article 135, Limitation Act. However, execution of the decree for prohibitory injunction could proceed and the appeal was partly allowed.

4. The judgment debtors have now come np in appeal and contend that even the decree for prohibitory injunction cannot be executed.

5. Learned counsel for the appellants has strenuously urged that even the decree for permanent injunction cannot be executed once it was held that execution of decree for mandatory injunction for removal of the existing fuel-wood stalls could not proceed. According to the learned counsel prohibitory injunction can be granted only in respect of a threatened act and not in respect of an accomplished fact I cannot possibly agree. The learned counsel appears to be under some misapprehension as to the legal position. The defendants' possession may be a relevant consideration in a suit for prohibitory injunction but once a decree has been granted, the executing court have only to execute the same. An objection as to maintainability of the suit on such a ground could well be taken during the trial but not before the executing court. It has been candidly conceded that the plaintiff being not the owner of the road patri no relief of possession could have been claimed by him. The plaintiff could only pray for a mandatory injunction for directing the defendants to remove their materials from the road patri. The suit as framed was, therefore, proper and was rightly decreed. In view of the decree, the plaintiff had both the modes of executing the decree open to him. On the expiry of the time allowed to remove the material voluntarily from the road patri, the decree-holder could put the decree for mandatory injunction under execution for the purpose as also to execute the decree for prohibitory injunction. Since the execution of the decree for mandatory injunction had become barred by time, therefore, the remedy to execute the same was no longer available to him. This, however, cannot mean that other part of the decree also must become unexecutable on that ground. The only effect of non-executability of the decree for mandatory injunction would be that actual removal of goods from the road patri cannot be sought through execution. The right of the decree holder to execute the decree for prohibitory injunction by attachment of the property or for committing the judgment debtors to civil prison continues to survive.

6. The learned counsel for the appellants placed reliance on Shyam Sunder Pd. v. Ram Dass Singh AIR 1946 Pat 392. In that case therelief of mandatory injunction for removal of an encroachment from the village path-way had been dismissed but a decree for permanent injunction had been passed restraining the defendants from encroaching upon the said path way. The Court held that such a decree was not capable of execution until an obstruction was caused to it. As soon as obstruction is caused in breach of the decree a cause of action for enforcement of the decree would arise. Thus decree holders' right to apply for execution accrues only when an obstruction is caused The facts and circumstances of the Patna case are obviously very different from those of the present case. It is not disputed that the execution of the decree for permanent injunction was not barred by limitation. The only objection raised was that the decree was not executable since the decree for mandatory injunction could no longer be executed. The two reliefs granted by the decree are in no way interdependant Even if actual removal of the material from the road side patri may not be possible through execution yet the personal obligation imposed on the defendants by prohibitory injunction would still be binding. They may choose to disobey the injunction only at their own peril. The decree holders can certainly bring the matter before the Court by way of execution in the manner prescribed by law.

7. In view of what I have said above, I do not find any force in the appeal which is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //