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ishteyaque Ahamad and anr. Vs. Kitawan Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 81 of 1981
Judge
Reported inAIR1985Ori102; 1985(I)OLR102
ActsLimitation Act, 1963 - Schedule - Article 135
Appellantishteyaque Ahamad and anr.
RespondentKitawan Bibi and ors.
Appellant AdvocateA.K. Sahoo, Adv.
Respondent AdvocateP.K. Misra and ;L. Mohapatra, Advs.
DispositionRevision allowed
Excerpt:
.....statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - -when, to prevent the breach of an obligation, it is..........objected to the execution of the decree on the ground that the part of the decree relating to the mandatory injunction cannot be executed after expiry of three years as envisaged in article 135 of the limitation act. after hearing both parties, the executing court overruled the objection and came to hold that article 135 was not applicable but, on the other hand, article 136 of the limitation act being applicable to the case, the decree can be executed according to law. this order stands impugned in this court. 2. at the time of hearing, learned counsel appearing for the petitioners urged that the part of the decree relating to mandatory injunction being hit by article 135 of the limitation act, the court below while executing the decree cannot direct demolition of the construction made.....
Judgment:
ORDER

K.P. Mohapatra, J.

1. The opposite parties obtained a decree with costs against the petitioners in Title Suit No. 35 of 1967 on 11-9-1970 in the Court of the learned Munsif, Panposh to the following effect :--

'The right, title and interest of the petitioners over the suit premises and shed are declared. The Defendants are permanently restrained to farther construct and they are directed to demolish the alleged construction made by them. It is further ordered that if the defendants do not demolish the construction made by them within a month from this date the plaintiffs be entitled to get it demolished through Court'

The opposite parties levied execution on 21-3-1980 in Execution Case No. 3 of 1980 praying therein 'demolition of the construction made by the defendants on the suit land and realisation of the costs of the (sic) (suit) and the costs of this execution by attachment and sale of the moveables of the judgment debtors'. The petitioners after appearance objected to the execution of the decree on the ground that the part of the decree relating to the mandatory injunction cannot be executed after expiry of three years as envisaged in Article 135 of the Limitation Act. After hearing both parties, the executing Court overruled the objection and came to hold that Article 135 was not applicable but, on the other hand, Article 136 of the Limitation Act being applicable to the case, the decree can be executed according to law. This order stands impugned in this Court.

2. At the time of hearing, learned counsel appearing for the petitioners urged that the part of the decree relating to mandatory injunction being hit by Article 135 of the Limitation Act, the Court below while executing the decree cannot direct demolition of the construction made on the suit land. Learned counsel appearing for the opposite parties, on the other hand, contended that Article 136 of the Limitation Act is applicable and so the decree is executable according to law. The contention require careful examination.

3. The operative part of the decree quoted above gave the following reliefs to the opposite parties : --

i) Declaration of their right, title and interest over the suit premises and shed.

ii) Permanent injunction restraining the petitioners from further construction thereon.

iii) Direction to the petitioners to demolish the alleged constructions made by them within a month failing which the opposite parties were entitled to get them demolished through Court.

So far as the first two reliefs were concerned, they became effective immediately after the decree was passed, which means, the opposite parties have right, title and interest over the suit premises and the shed and further the petitioners stood permanently restrained from making further construction thereon. That is why in column 10 of the execution petition, the opposite parties did not seek for the assistance of the executing Court. But so far as the third relief is concerened, it was contended that it is in the nature of a mandatory injunction. By granting a mandatory injunction, a Court compels performance of any requisite act, for example, the demolition of an unauthorised structure according to Section 39 of the Specific Relief Act, 1963 which reads as follows : --

'39. Mandatory injunction. --When, to prevent the breach of an obligation, it is necessary to compel the performance fo certain acts which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.'

In the instant case by granting the third relief the trial Court compelled the petitioners for the performance of certain act, that is, demolition of unauthorised construction. The third relief granted in the decree is, therefore, in the nature of a mandatory injunction as envisaged in Section 39 of the Specific Relief Act 1963.

4. Article 135 of the Limitation Act provides a period of three years for the enforcement of a decree granting a mandatory injunction. The period of Limitation commences from the date of the decree or where a date is fixed for performance, such date. Article 136 of the Limitation Act provides a period of limitation of twelve years for execution of any decree other than a decree granting a mandatory injunction. It is already found above that the third relief granted in the decree is in nature of a mandatory injunction and so Article 135 and not Article 136 of the Limitation Act will govern the case. The judgment was passed on 11-9-1970 and the decree was drawn up on 19-9-70. Execution was levied in Executive Case No. 3 of 1980 on 21-3-1980 long after expiry of the period of limitation. It is, therefore, patent that the third relief of mandatory injunction granted in the decree being barred by limitation cannot be executed. It is however open to the executing Court to execute the decree relating to realisation of costs only, because, so far as realisation of costs in concerned, Article 136 of the Limitation Act providing a period of limitation of twelve years shall be applicable. In this view of the matter the finding recorded by the executing Court in the impugned order cannot be sustained.

In the result, the civil revision is allowed and the impugned order is vacated. No costs.


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