M.A. Raja vs S. Vedhantham Pillai and 4 others

This revision petition arises in execution in O.S.No.422 of 1981 on the file of District Munsif Court, Mettur.

First respondent herein has obtained a decree, which reads thus,

(i) That the defendants and their men be and are, hereby permanently restrained by a permanent injunction from a ny manner interfering with the

peaceful possession and enjoyment of the suit properly by the plaintiff.

(ii) that the defendants be and are hereby directed by a mandatory injunction to demolish and remove the building constructed by then) in the suit

property in S.No.2/A/2 obstructing the entrance marked as ''A'' in Ex.C2 Commis-sioner''s plan attached herewith to the building of the plaintiff

within a period of 3 months from this date.

(iii) that in default of such removal by the defendant within 3 months stated in decree in plan is at liberty to take appropriate steps for such removal

The decree is dated 30.8.1981. Decree holder filed E.P.200 of 1986 to execute the decree, by appointment of Commissioner and to remove

obstruction. Petitioner took a contention that the decree is one for mandatory Injunction and since the execution petition was filed beyond three

years. It is barred by time. The Objection was overruled by executing Court.

Against the order Petitioner filed C.M.A.No.27 of 1997 on the file of Subordinate Court. Sankari. The appeal itself was not maintainable being

an order of execution. Appellate court held that the appeal Is not maintainable but at the same time discussed the evidence and dismissed the

appeal on merits. The same is challenged in C.R.P.No.3316 of 1999.

Petitioner also filed another revision against the order in execution petition rendered by executing court with an application to condone the delay

of 757 days In filing the revision. In the application to condone delay it Is said that by mistake, the appeal was taken before Sub Judge and appeal

is pending for more than two years and the pendency of appeal is taken as a ground to excuse the delay in filing revision.

Since respondent also entered appearance by filing caveat, 1 heard the revision itself on merits at the admission stage.

Learned counsel for petitioner submit that when lower appellate court held that appeal is not maintainable it has no jurisdiction to decide the

matter on merits. I reel the said contention is only to be accepted. As per the amendment Act 104 of 1976 to CPC an order in execution is not

appealable. Filing appeal before appellate court was therefore not correct and when the right of appeal is taken away by statute, appellate court

also should not have entertained the same. Having rightly held that it has no jurisdiction, it should not have gone into the merits of the case. To what

extent the impugned in C.R.P.No.3316 of 1999 requires interference.

By setting aside the order, appellant is not going to get any relief unless main order in execution is also challenged. That is why petitioner has

filed another revision petition against the application with an application to condone the delay. Main reason that is stated in the revision is pendency

of C.M.A.No.59 of 1999 before lower appellate Court. u/s 14 of the Limitation Act, pendency of a proceeding before a court having no

jurisdiction is sufficient cause for condoning delay.

Counsel for respondent, was also heard on the delay petition and what, he insisted was that revision petition itself may be heard on merits. He

also did not dispute the correctness of legal position placed by counsel for appellant. I also find that sufficient cases is made out for condoning

delay. Hence C.M.P.No.19325 of 1999 in C.R.P.S.R.No.88891 of 1999 was allowed and the office was directed to number the revision petition

and the same is numbered as C.R.P.No.3696 of 1999.

I have already extracted the decree which is sought to be executed in this case. Only question that requires consideration is whether execution

application is barred by time as contended by petitioner. According to counsel for petitioner, decree is for mandatory injunction and petitioner has

been directed to remove certain structure which is causing obstruction to the passage of the decree holder. Under Article 135 of Limitation Act,

decree holder gets only three years time from the date on which decree becomes enforceable. Three months time has been given to petitioner to

obey the decree and on expiry of that period the decree becomes executable. Execution petition was filed only in 1986 i.e., long after expiry of

three years and the E.P. is barred.

As against the said contention, learned counsel for respondent submitted that the decree is not only for mandatory injunction, but also for

prohibitory injunction for executing decree for prohibitory injunction Article 136 is applicable and there is no period of limitation. When the decree

is for prohibitory injunction and mandatory injunctions for executing a decree for prohibitory injunction are granted, Article 136 alone is to be

applied and not Article 135, is the argument of the learned counsel.

Suit was laid by decree holder for removal of obstruction caused to him by petitioner to his passage to his property. The Judgment in suit is

also amount the typed set of papers. It could be seen therefore that the decree holder is owning the property having an extent of 30 cents in

S.No.2 B and the same is situated on the west of S.No.2A2, which is a public road. An attempt was made by petitioner herein by putting

construction in that road and the same was sought to be removed. An argument was taken by petitioner on the trial side that since he has put up

construction only on the highways, plaintiff as an individual cannot maintain suit. Rejecting the aid contention it was held that plaintiff has got right of

access from every portion of highways to his building. Court relied on a decision of this court for the aid purpose.

After holding that decree holder is having access to his property from all sides, it was held thus.

... I am of the opinion that the plaintiff is entitled to an order of injunction both mandatory and permanent injunction. The defendant has to be

directed to remove the constructions within a period of three months from this date failing which the plaintiff is entitled to take steps through

court....

While decreeing suit, trial court further said thus.

In the result, there will be a decree for both permanent and mandatory injunction against the defendants restraining them from interfering with the

possession of the plaintiff and also removing the buildings put up by them in S.No.2A/2 obstructing the entrance marked as A in Exhibit C2 in the

buildings of the plaintiff within a period of three months fail in, which the plaintiff is at liberty to take steps. The plaintiff will be entitled to costs.

Ex.C2 will be attached to the decree.

From the above decision it is clear that the court held was that plaintiff is having right of access to his building from the road without any obstruction

and plaintiff got legal right and an obligation on the part of defendant not to cause any obstruction. It only recognised the antecedent right of plaintiff

that he is entitled to make use of the road, without any obstruction from defendants. Since defendant has already put up construction , the same

was also directed to be removed by way of mandatory injunction. Only because right of plaintiff to have access to his building without obstruction

is recognised and it is only because plaintiff to have access to his building without obstruction is recognised and it is only because plaintiff is entitled

to a decree of permanent injunction, mandatory injunction is also granted. When court recognises the legal right and grants relief, it really amounts

to declaration of that right, though the word ''declaration'' itself is not given in the decree. By recognition of earlier right Court is not giving new right

to plaintiff.

Section 37(2) of Specific Relief Act Says.

A perpetual injunction can only be granted by the decree made at the nearing and upon the merits of the suit, the defendant is thereby perpetually

enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

From the reading of above section, it is clear that defendant cannot assert any right and he is also prevented from commission of an act which goes

against the interest of plaintiff. In view of the said statutory provision, the continued existence of building will be contrary to the rights of plaintiff and

plaintiff is entitled executed the decree as if it is a decree for perpetual injunction. If that be so, there is no question of limitation.

Reliance was also placed on the decisions reported in Bashir Ahmad Vs. Menhdi Hasan, ; Harihar Pandey Vs. Mangala Prasad Singh and

Others, ; Padmanabhan Pillai and Another Vs. Sulaiman Kunju Ahamed Koya and Others, ; Ramaligam v. N. Thangavelu, 1997 (2) LW 35.

On going by these decision I find that the decisions have only declared that when a decree for mandatory and prohibitory injunctions are

granted, decree for permanent injuction could be executed though execution of mandatory injunction could be barred. In fact, the decision in

Padmanabhan Pillai and Another Vs. Sulaiman Kunju Ahamed Koya and Others, was concerned only with decree for prohibitory injunction,

wherein the learned Judge held that the decree is not barred by time.

In the Allahabad decisions also learned Judge held that the decree for mandatory injunction could be separated from that of decree for

prohibitory injunction and allowed execution to proceed.

Learned counsel for respondent relied on the decisions reported in B. Gangadhar v. Rajalingam, 1995 (2) MLJ 107; N.S. Karuppanna

Gounder Vs. Nagammal and Another, ; S.A. Azizullah v. Sakthivelu, 1993 (1) LW 538.

The decision of Honourable Supreme Court reported in B. Gangadhar v. Rajalingam, 1995 (2) MLJ 107, was a case for possession of

property simpliciter. During the pendency of suit, defendant put up construction and the question that came for consideration was whether the

construction made was liable to be demolished. Their Lordships held that the construction are to be demolished and decree for mandatory

injunction is not necessary in such case.

The decision in N.S. Karuppanna Gounder Vs. Nagammal and Another, was a case of peculiar nature on facts and I do not think that the

same has relevance to the facts of this case.

The decision reported in S.A. Azizullah v. Sakthivelu, 1993 (I) LW 538 was a case for decree for possession and also for removal of

superstructure by a decree of mandatory injunction. Learned Judge of this Court held that even if a decree for mandatory injuction is barred the

decree could be executed as if decree for possession.

I find the above decisions mentioned in para 18 and 20 applicable to the facts of this case.

I also had occasion to consider this question in C.R.P.No.3198 of 1999. In that case a decree for declaration of title and mandatory injunction

was granted. The contention was whether application has to be filed under Order 21, Rule 34 or Order 21 Rule 35 of CPC. I held that in view of

the declaration given in the decree, the same could be executed under Order 21, Rule 34 and the principles under Order 21, Rule 32(5) could be

applied for removing the obstruction. What is the effect of declaration granted by decree was considered. I think the above decision also will be of

some help in deciding these revision petitions.

I have already said what is the effect of decree for permanent prohibitory injunction. Decree holder''s antecedent rights are recognised and he

was found to be entitled to make use of the passage unobstructed for his access of his property. That apart of decree can be executed.

What will be the effect if mandatory portion of decree cannot be executed. I have already said that decree for mandatory injuction is granted

only consequent to UK finding that plaintiff is entitled to permanent injunction. If obstruction continues, that will be violation of decree for

permanent injunction also. Plaintiff will be entitled to have the same executed under Order 21, Rule 32 of CPC. In fact I find execution application

itself is filled only under Order 21, Rule 32(5) of CPC.

In the decision reported in Ondipudur Weavers Co-op & S.Socy.Ltd.v. Velumani, 1977 (II) MLJ 19, a similar question came for

consideration. In that case, a decree was granted declaring the right of plaintiffs to make use of the road and restraining defendant from interfering

in the use of the road. Execution application was filed complaining that defendants have disobeyed the orders of this court and they have not

removed the obstruction in the road. They wanted judgment debtor to be arrested for alleged disobedience. Executing Court without arresting

Judgment Debtor, appointed a Commissioner for removal of obstruction to have access usable as directed by the decree. The same was

challenged before this court and learned judge considered the scope of Order 21, Rule 32(5) in that case. In para 5 of the judgment, it is held thus,

In this case, there is a decree declaring the respondent''s right to use the pathway and an injunction restraining the appellants from interfering

with such right When the respondents decree holders found that the pathway is so covered with throny bushes that the right of pathway declared in

their favour could not be properly exercised, normally they an entitled to clear the throny shrubs for facilitating their use of the pathway. But when it

was found that the appellants, judgment -debtors, resisted that attempt of respondents , decree holders, in clearing the throny shrubs found on the

pathway, naturally they have to approach the executing court complaining that the judgment-debtors who have been restrained from interfering with

the user of the pathway by the decree-holder are obstructing the clearance of the throny shrubs and therefore they have virtually disobeyed the

orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the code is not invoked by the decree-holders on the ground that the

appellant adjudgment-debtors have not performed any positive act directed by the court bus that they are preventing the clearance of the shrubs by

the decree- holders for the proper use of the pathway Such interference with the clearance of the throny shrubs will amount to an indirect attempt

on the part of the judgment debtors to interfere with the plaintiffs user of the pathway. If, in fact, the judgment-debtors, have not obstructed or

prevented the clearance of the shrubs by the decree-holders, they would not have approached the executing court for the appointment of a

Commissioner to clear the throny shrubs. I am not, therefore, inclined to agree with the learned counsel form the appellants that the application filed

under Order21, Rule 32(1) and (5) by the respondents in this case is not maintainable.(Italics Supplied)

A similar view was taken in the decision reported in Ram Charan Sikdar Vs. Sm. Jogamaya Basu and Another, in which the decision of this

court was followed.

Petitioners has no case that part of permanent injunction is barred by limitation and what he says is that mandatory decree cannot be executed.

By granting mandatory injunction, defendant is bound to remove the structures that was in existence at the time of institution of suit and passing

decree. Plaintiff does not want defendants to do it. Plaintiffs only enforce that part of decree that is enforceable and they are not compelling

defendants to remove it. In view of the prohibitory injunction that plaintiff is entitled to make use of the pathway without any obstruction defendants

are also barred from asserting their right. Therefore plaintiffs are well within their rights to invoke the provisions under Order 21, Rule 32(5), but

taking assistance of court that the obstruction still continues and their right of enjoyment is being affected by wrongful assertion of defendants and

the same is to be removed. For the said purpose plaintiff are seeking the assistance of court for appointment of Commissioner and if court accepts

the same. It cannot be said that the order is illegal and one without jurisdiction.

In the result, the revision petition is without merit and the same is dismissed. Order of the executing court is confirmed. No costs.

CMP.No.18678 of 1999 is also dismissed.