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Gyanendra Pradhan Vs. Smt. Kanak Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 728 of 1981
Judge
Reported inAIR1985Ori254; 1985(II)OLR234
ActsLimitation Act, 1963 - Schedule - Articles 135 and 136
AppellantGyanendra Pradhan
RespondentSmt. Kanak Dei and ors.
Advocates:M.R. Panda, Adv.
DispositionRevision dismissed
Excerpt:
.....in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts. in the present case, the decree of the trial court which was confirmed in the first appellate court as well as the second appellate court, directed delivery of possession of the suit premises to be given by the defendants to the plaintiff within one month and permanently restrained the defendants from entering upon the suit premises, in other words, the claim of the plaintiff for recovery of possession and permanent injunction was granted......the sum of rs. 42.40 be paid by the defendants to the plaintiff on account of the costs of this suit.'the defendants filed title appeal no. 39/75against the aforesaid decision of the trial courton 19-3-1975. the appeal was dismissed withcosts by the ist additional subordinate judge,cuttack and the decree was passed on 2-2-1977. it appears from the execution petitionthat second appeal no. 109/77 filed by thedefendants against the decisions of the 1stappellate court was dismissed by this court on17-1-1979. the decree holder (opposite partyfiled the execution petition on 16-5-1981. in hispetition the decree-holder prayed for recovery(her) of possession of the suit properties andfor realisation of costs. the petitioner in paragraph 1 of his objection stated that the execution case is not.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. Srimati Kanak Dei, opposite party No. 1 is a plaintiff, decree-holder and the petitioner and opposite parties 2 to 5 are the defendants Judgment debtors in Execution Case No. 100/81 pending before the Munsif, Ist Court, Cuttack. The execution case arises out of Title Suit No. 111/69. The petitioner's application under Section 47, Civil P. C. having been rejected by the executing court by orderdated 5-11-81 she has filed this application under Section 115, Civil P. C. The maintainability of the execution case was challenged on several grounds, the principal one being one of limitation. According to the petitioner the execution case is barred by limitation in view of the provisions of Article 135 of the limitation Act, 1963.

2. The decree in Title Suit No. 111/69 was signed on 10-2-1975. The effective portion of the decree read as follows : --

'It is ordered that the suit be and the same is decreed on contest against defendant Nos. 1 to 3 and ex parte against the rest of the defendants with costs and it is ordered that the plaintiff shall recover possession of the two roomed house standing on the suit land from the defendants and the defendant Nos. 1 and 2 shall give delivery of possession of the said house within one month hence, failing which it is open for the plaintiff to levy execution for the recovery of the suit house and in such event the court shall give vacant possession of the suit house to the plaintiff. In such circumstances all costs of restoration of possession will devolve on defendant Nos. 1 and 2. It is further ordered that the defendants are permanently restraiaed from going upon the suit land and from interfering with the plaintiff's possession over the suit land. Pleader's fee at contested scale and that the sum of Rs. 42.40 be paid by the defendants to the plaintiff on account of the costs of this suit.'

The defendants filed Title Appeal No. 39/75against the aforesaid decision of the trial courton 19-3-1975. The appeal was dismissed withcosts by the Ist Additional subordinate Judge,Cuttack and the decree was passed on 2-2-1977. It appears from the execution petitionthat Second Appeal No. 109/77 filed by thedefendants against the decisions of the 1stAppellate court was dismissed by this court on17-1-1979. The decree holder (Opposite partyfiled the execution petition on 16-5-1981. In hispetition the decree-holder prayed for recovery(her) of possession of the suit properties andfor realisation of costs.

The petitioner in paragraph 1 of his objection stated that the execution case is not maintainable and in para 3 thereof took the plea that the proceeding is grossly barred by limitation. Nothing was stated as to under which provision of law the execution petition was barred by limitation. The impugned order shows that reliance was placed, as noticed earlier, on Article 135 of the Limitation Act. The executing court rejected the objections raised by the petitioner (judgment debtor) to maintainability of the execution case.

3. In view of the facts narrated above the question that arises for consideration is whether the execution case filed on 16-5-1981 is barred by limitation. Before proceeding further it would be helpful to quote the provisions of Articles 135 and 136 of the Limitation Act, .1963 which are relevant for the purpose :

'135.For the enforcement of a decree granting a mandatory injunction.

Three yearsThe date of the decree or where a date is fixed for performance, such date.

136. For the execution of any decree (other than a decree granting a mandatory injunction) or order ofany civil court.

Twelve years.When the decree or order be-comes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought takes place, provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.'

From the aforesaid provision, it is clear that Art, 136 is a general provision applicable to the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. The proviso in the 3rd column of this Article provides that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Article 135 of the Act, on the other hand, is a special provision applicable to a case of enforcement of a decree granting a mandatory injunction. While under Article 136, 12 years period is fixed for execution of a decree, under Article 135 a period of 3 years from the date of decree or where a date is fixed for performance, of such date, is prescribed.'

4. When to prevent the breach of a legal obligation it is necessary to compel the perfomance of 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. This is termed mandatory injunction in the Specific Relief Act. There is difference between prohibitory injunction and mandatory injunction. In a suit for prohibitory injunction the defendant isprohibited from doing a particular thing in a particular manner, whereas in a suit for mandatory injunction, the defendant is directed to do a thing and if he fails to do as directed the court will get it done through its officers.

In the present case, the decree of the trial court which was confirmed in the first appellate court as well as the second appellate court, directed delivery of possession of the suit premises to be given by the defendants to the plaintiff within one month and permanently restrained the defendants from entering upon the suit premises, in other words, the claim of the plaintiff for recovery of possession and permanent injunction was granted. There was no specific direction in the decree to be carried out by the defendants which can be said to be in the nature of a mandatory injunction. As such, it cannot be said that Article 135 is attracted to the decree under execution. If Article 135 does not apply to the case then Article 136, applies and the said provision prescribes twelve years for execution of any decree or order of civil court and the proviso expressly provides that there will be no period of limitation for enforcement of a direction for permanent injunction. Hence the question of limitation does not arise.

5. In view of the aforesaid discussions it has to be held that the execution petition is not barred by limitation. As such, the order of the executing court rejecting the petitioner's application under Section 47, Civil P. C. is unassailable. The civil revision is rejected as devoid of merit, but in the circumstances of the case without any order for costs.


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