M.J. Sarojama vs K. Pedda Chenna Reddi and others

S.H. Sheth

This appeal arises out of execution proceedings in O.S. 14 of 1959. The suit which was filed for mandatory injunction was compromised. The compromise decree provided that the plaintiff shall do certain things and that the defendant agreed in his turn to close down the window and to construct a wail. There after the defendant sold the property to the present appellant. Plaintiffs 1 to 4 in their return sold their properties to the judgment-debtors 5 and 9. The transferee from the defendant (the present appellant) thereafter filed the present execution petition in order to enforce clauses 4 to 5 of the compromise decree. It was contended by the transferees from the plaintiffs that under Order 21 Rule 16 the execution petition was not maintainable and that it was barred by time.

The executing Court held that the execution petition was maintainable. However the contention as to limitation was not argued before the executing Court, Therefore it ordered the execution petition to proceed further.

That order was challenged in appeal by the transferees from plaintiffs. The learned appellate Judge held that the execution petition was not maintainable and that it was barred by limitation. It may be noted that me question of limitation was for the first time argued before the learned appellate Judge. He therefore allowed the appeal, set aside the order made by the executing court and dismissed the execution petition.

It is that appellate order which is challenged by the defendant''s transferee in this appeal.

It has been argued on behalf of the appellant by Mr. Govindarajulu that the execution petition was not barred by time. He has relied upon Article 136 of the Limitation Act, 1963, which provides a period of 12 years for the execution of any decree or order of a Civil Court other than a decree granting mandatory injunction. It has been argued on behalf of the respondents that the execution petition was governed by Article 135 of the Limitation Act, 1963 and that therefore the execution petition was barred by time.

Article 135 provides a period of three years for the enforcement of a decree graining mandatory injunction. The period of three years would either run from the dale of decree or from the date of performance where such a date has been fixed. The controversy between the parties therefore has centered round the construction of the decree. The question which has (sic) is whether the compromise decree under execution is a decree (sic) permanent injunction. In order to appreciate this contention it is necessary to turn to the decree. Clauses 4 to 6 which are sought to be enforced in the present execution proceedings provide as follows:--

Under Clause 4 the existing latrine of the defendant is directed to be removed from its present location to the east and to be connected with the existing septic tank pit.

Clause 5 requires the construction by the plaintiff of a passage from the western end of the latrine to further west in order to connect it with Industrial Training Institute Road.

Clause 6 requires the plaintiff to level the ground of the rear portion of defendant''s house with hard material so that the rain water would easily pass from east to west and farther to I.T.I. Road.

All the three clauses which are sought to be enforced in execution petition require the concerned party to do certain things obviously therefore they constitute a mandate and the directions incorporated in the clauses 4 to 6 of the decree under execution are a mandatory injunction. However it has been argued by Mr. Govindarajulu that a compromise decree cannot be termed as a decree for mandatory injunction. According to him a decree for mandatory injunction is one which is passed by the Court on merits of the case otherwise than by compromise. According to him a compromise decree does not represent the command of the court but merely represents the agreement between the parties with the seal of the court superimposed upon it. I am unable to uphold this argument because I am unable to imagine that a mandatory injunction cannot be issued under a compromise decree. It is true that what the compromise decree incorporates is the agreement between the parties but that agreement receives the force of excitability when the court records it and affixes its seal to it. Whether it is issued by the court after deciding the controversy on merits or whether it is issued by the court in terms of the agreement between the parties, it is a decree for mandatory injunction. In my opinion therefore it is wrong to say that there cannot be a compromise decree granting a permanent injunction.

The second argument which he has raised is that a decree granting a mandatory injunction is different from a decree granting the relief in the nature of a mandatory injunction. This argument is based upon the same reasoning upon which the first argument is based. According to Mr. Govindarajulu since a mandatory injunction can be granted only by the court after deciding the controversy between the parties on merits, otherwise than under compromise, a compromise decree requiring party or parties to do certain things can only be a decree granting the relief in the nature of a mandatory injunction. Bosh the arguments raised by Mr. Govindarajulu are indeed very soph''sticated arguments but I am unable to uphold them because whether it is a compromise decree granting mandatory injunction or whether it is a decree passed on merits by the court after trying the suit, it is a decree granting a mandatory injunction. In the facts and circumstances of this case I am unable to see any distinction between the decree granting a mandatory injunction and a decree granting the relief in the nature of a mandatory injunction. In my opinion therefore the present execution petition was governed by Article 135 of the Limitation Act and was barred by time. It is not necessary for me, in view of the conclusions which I have reached, to examine the terms of article 136 on which reliance has in the alternative been placed by Mr. Sivaprasada Rao for a particular purpose.

The next contention which he has raised is that the execution petition is maintainable under Or. 21, Rule 16 C.P.C. and the Courts below were in error in recording a finding to the contrary. The view expressed by the courts below is that a transferee can execute a decree only if the decree has been assigned to him as contemplated by Order 21, Rule 16 C.P.C, However, if the entire property which was the subject matter of the decree was transferred without any express assignment of the decree, the decree could not be executed. That is the view taken by the courts below.

Since I have held that the execution petition was barred by time and was therefore not maintainable it is not necessary for me to express any opinion in this aspect of the case. In the result the appeal fails and is dismissed with no costs