Mrs. Sargunam vs Duraisamy

S. Ashok Kumar, J.—This revision has been preferred by the Decree Holder and respondent in E.A. No. 18 of 2000 in E.P. No. 1452 of 1997 in O.S. No. 5394 of 1989, as against allowing the said execution application filed u/s 47 of CPC by the respondent herein, praying to dismiss the E.P. No. 1452 of 1997 and to declare that the decree dated 13.01.1999 passed in O.S. No. 5394of 1989 as null and void.

The case in brief is as follows:

The petitioner herein filed O.S. No. 5394 of 1989 for the relief of declaration, mandatory injunction and for a permanent injunction on the file of the VIII Assistant City Civil Judge, Chennai and obtained an ex parte decree on 13.01.1992. The petitioner/plaintiff filed E.P. No. 1452 of 1997 for execution of the said ex parte decree before the X City Civil Judge, Chennai. At this juncture, the judgment debtor/defendant has filed E.A. No. 18 of 2000 in E.P. No. 1452 of 1997. The learned X Assistant City Civil Court, Judge, after hearing both sides, allowed the said execution application. Aggrieved over the said order, the petitioner/decree holder has come forward with the present civil revision petition.

According to the respondent/defendant the plaintiff by without disclosing necessary material facts has obtained the ex parte decree fraudulently behind his back. Further the schedule of property is not described clearly and correctly viz., even the measurements have not been mentioned correctly. Further, the easementary right on which the ex parte decree has been passed is not enforceable since apart from the plaintiff there are other persons using the said pathway and non-impleading of such necessary persons is fatal, because he cannot claim the absolute easementary over the said pathway. The alleged construction in the D Schedule property do not in any way causing any obstruction to the plaintiff/decreeholder and cannot be removed abruptly without giving an opportunity. Even the evidence of the plaintiff as P.W.1 for the ex parte decree is not cogent and convincing for decreeing the suit.

The trial court accepting the case of the defendant/judgement debtor allowed the said application holding that the Court is not satisfied with the execution proceedings as provided u/s 47 CPC and also the relief of mandatory injunction cannot be executed after expiry of three years as per the Limitation Act. Against the said decision, this revision has been filed by the plaintiff/decree holder.

Heard learned Counsel for the petitioner as well as the respondent. From a perusal of the order and the averments contained in the typed set of papers, it is clear that the revision petitioner/decree holder has obtained an ex parte decree against the respondent/judgement debtor. According to the defendant such a decree had been obtained by suppressing the material and vital facts. According to him even the description of suit property has not been described properly. The plaintiff did not acquire exclusive easementary right and therefore the decree is unenforceable. The suit is bad for misjonider of necessary parties as there are other persons enjoying the same right. According to the learned Counsel for the respondent, the E.P., is hit by Section 34 of the Specific Relief Act and hence the decree cannot be enforced under Article 135 of the Limitation Act, 1963 which prescribes that a petition has to be filed within a period of three years for the execution of mandatory injunction decree. It is also alleged by the counsel that the plaintiff has got an alternative pathway to reach his property.

Admittedly, since it is an ex parte decree, no Advocate Commissioner was appointed and the plaintiff has also not taken any steps in this regard before trial of the suit. Even the evidence let in by him as P.W.1 is bereft of material facts to establish his case. There is no evidence as to the exclusive usage of the pathway or as to the actual existence of such a construction or as to the alternative pathway if any available to the plaintiff other than the suit pathway.

Learned Counsel for the revision petitioner also produced a xerox copy of the sale deed dated 14.12.1981 to show that the right to use the suit pathway has been conferred on her in the recitals found in the said sale deed by her vendor.

As regards the limitation aspect, the learned Counsel for the revision petitioner relied upon the judgment of the Kerala High Court in Simon Vs. Athirampuzha Panchayat, wherein a learned Judge of the Kerala High Court held as follows:

In the instant case, the decree granted by the trial court is for injunction. It consists of two independent parts; the first being for enforcement of the duties of the defendants through mandatory injunction and the other restraining him from doing certain things. While Article 135 provides a period of limitation of three years for enforcement of decree granting mandatory injunction, Article 136 provides for twelve years for executing other decrees. However, it is specifically stated in Article 136 that an application for enforcement or execution of a decree granting perpetual injunction shall not be subjected to any period of limitation. Thus, here is a case where the decree is composite; one part of which is subjected to limitation period of 3 years, whereas the other is not subjected to any period of limitation at all and the petitioner can enforce the prohibitory injunction, whenever violation of that part takes place. It cannot be said that once the mandatory part becomes unenforceable the other part also would be subjected to the same fate.

In the above said case, both mandatory as well as prohibitory injunction were sought for and the trial court granted only prohibitory injunction. In that context, the learned Judge of the Kerala High Court rightly held that under proviso to Article 136 of the Limitation Act, the prohibitory injunction which is perpetual in nature can be enforced at any point of time by making an application whenever there is a violation of the decree for prohibitory injunction. But in the present case, the decree has been granted to the plaintiff, for declaration, declaring his title to the suit property pathway, mandatory injunction to remove the building constructed on the said pathway and also permanent injunction restraining the defendant and his men from putting up any further construction on the D Schedule property.

In the instant case, admittedly the decree has been granted on 13.1.1992 and the E.P., has been filed only on 28.4.1997 and taken on file only on 19.6.1997 after the period of three years of limitation. Thus the decree for mandatory injunction to remove the superstructure, if any, is clearly barred by Article 135 of the Limitation Act. Therefore, at the most, the plaintiff is entitled only to the relief of permanent injunction which is perpetual in nature which can be enforced whenever there is a violation in that not to put up any further construction on the D Schedule property.

Therefore, for the reason stated above, the CRP is partly allowed holding that the plaintiff/decree holder is only entitled to the relief of permanent injunction. In other aspects, the order of the trial court is confirmed. Consequently, connected CMP. No. 11774 of 2005 is closed. No costs.