S.A. Azizullah and Another vs Sakthivelu and Others

Abdul Hadi, J.—This civil revision petition is filed by the decree-holders against the dismissal of their E.P. No. 9 of 1990 for executing the

decree obtained by them in O.S. No. 303 of 1977 on 15.10.1979. The material portion of the decree runs as follows:

That the plaintiffs'' title be and the same is hereby declared to the suit site.

That the defendants do deliver the possession of the suit property to the plaintiffs.

That the defendants do remove the superstructure put by them in the suit site by means of mandatory injunction at their own cost.

So Clause 2 of the decree grants possession of the suit site to the plaintiffs/petitioners and since there is a superstructure on the suit site, as per the

prayer in the suit, Clause 3 grants a mandamus directing the defendants/respondents to remove the said superstructure put up by them in the suit

site. The abovesaid E.P. is for executing the said decree for possession and for mandatory injunction to remove the above said superstructure. The

Court below has dismissed the E.P. in toto on the ground that the abovesaid Clause 3 of the decree being a decree for mandatory injunction,

cannot be executed in view of Article 135 of the Limitation Act, which prescribes only a three year period for the execution of the decree. The

E.P., was filed on 2.3.1990, and as already stated, the decree is dated 15.10.1979. Since the said three years-period has elapsed, the Court

below has refused to execute the decree in toto. Aggrieved by the said order in the E.P. the decree-holders have preferred this civil revision

petition.

The learned Counsel for the petitioners submits that even assuming that the portion of the decree, which grants the abovesaid mandatory

injunction is not executable in view of Article 135 of the Limitation Act, the Court below should not have dismissed the E.P. in toto but should have

ordered the E.P. in so far as the abovesaid Clause 2 of the decree relating to possession of the suit site. He also submits that the Court below has

erred in distinguishing the decision in Dwaisami Mudaliar v. Ramasami Chettiar 92 L.W. 144. In the said case, there was no such mandatory

injunction decree, though there was a decree for possession. In that context, this Court in the above said decision observed thus:

Where, however, the super structure were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in

the decree, the proper course in appropriate cases would be to direct the judgment-debtor to remove the superstructures so put up by him so as

to effectuate vacant delivery of the suit site to the decree-holder.

But the Court below has held that this decision is not applicable since in that case there was no decree for mandatory injunction for removal of the

superstructure. The learned Counsel for the petitioners also relied on the decisions in Ramrup Rai Vs. Mst. Gheodhari Kuer and Others, , Bashir

Ahmad Vs. Menhdi Hasan, and Kauk Sike v. Ong Hock Sein AIR 1927 Rang. 82, for substantiating his abovesaid argument.

On the other hand, the learned Counsel for the respondents argues that Duraisami Mudaliar v. Ramasami Chettiar 92 L.W. 144, is

distinguishable since in that case there is a specific decree for mandatory injunction.

I have considered the rival submissions. All that the learned Counsel for the petitioners argues is that the possession decree, which is lawfully

obtained, should atleast be executed, since admittedly there is no bar of limitation with reference to that portion of the decree and that the

petitioners should not be in a worse position than a person, who has only obtained a decree for possession of the suit site and not any mandatory

injunction decree for removal of the superstructure over it. There is considerable force in the argument of the learned Counsel for the petitioners.

Because the mandatory injunction decree cannot be executed in view of the law of limitation, it cannot be said that the other portion of the decree,

viz. the decree for possession, also cannot be executed. Just as in the abovesaid Duraisami Mudaliar v. Ramasami Chettiar 92 L.W. 144 even in

Ramrup Rai Vs. Mst. Gheodhari Kuer and Others, , is also a case where there is no decree for mandatory injunction, but there is only a decree for

possession of the site. There also, it has been observed as follows:

It cannot be disputed that where the defendant put up construction pendente lite or after the passing of the decree, then the Executing Court can

order demolition of the structures and deliver vacant possession. But, where the construction are put up before the institution of the suit, the

Executing Court cannot order demolition of the structures, but would simply deliver possession of the land and the buildings after removal of the

judgment-debtor therefrom. In either case, however, the court may before ordering delivery of possession give time to the judgment-debtor to

remove himself the materials, if he so liked.

The other decisions cited by the learned Counsel for the petitioners also reiterate the same view. No doubt, Bashir Ahmad Vs. Menhdi Hasan, , is

a case of composite decree including a decree for mandatory injunction. But there too, though the mandatory injunction was not allowed to be

executed, the other portion of the decree was allowed to be executed.

Therefore, the order of the Executing Court in E.P. No. 9 of 1990 on the file of the Sub Judge, Dharmapuri in O.S. No. 303 of 1977 on the file

of the Sub Judge, Krishnagiri, is set aside and this civil revision petition is allowed, with costs. The Executing Court is directed to post the E.P.

immediately after the receipt of. the copy of this order (after giving short notice to the parties counsel), and give an opportunity to the judgment-

debtors by granting four weeks lime, for themselves removing the superstructure. If within the time allowed the judgment-debtors do not remove

the superstructure, then the Executing Court shall direct delivery of both the site and the superstructure to the decree-holders.