ORDER :

Petitioner being the Decree Holder in Execution Petition No.722/2019 is invoking the writ jurisdiction of this Court for assailing the order dated 20.11.2019, a copy whereof is at Annexure-A whereby the learned VII Additional City Civil Judge, (CCH19), Bengaluru, has dismissed the said execution case on the ground of limitation and for the same reason, he has rejected the application filed under Order XXI Rule 32(1) of CPC, 1908 seeking arrest & detention of the Judgment Debtor; the other reason for dismissal of Execution Petition is that the Decree in question is inexecutable.

2. Though the respondent Judgment Debtor has entered Caveat, his learned counsel has remained absent in the consecutive hearings; he is absent now too despite pass over in the morning session.

3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court grants reprieve to the Decree Holder for the following reasons:

(a) the learned judge of the Executing Court has made the impugned order on the premise that there is a limitation period prescribed by law for putting an injunctive decree in execution when there is none; the proviso to Article 136 in the Schedule to the Limitation Act, 1963 reads as under:

“… Provided that an application for the enforcement or execution of decree granting a perpetual injunction shall not be subject to any period of limitation.” A Coordinate Bench of this Court in RAMARAJU vs. SMT. INDRAMMA, 2014 (3) AKR 674 observed:

“ A decree for perpetual injunction is a decree in perpetuity. … Thus the decree for permanent injunction is perpetual in nature and it can be enforced as and when there is disobedience and the Limitation Act is not attracted to such decrees”.

(b) the above proviso to the article in question had fallen for the consideration of the Hon’ble Kerala High Court in the case of M J SIMON Vs. SPECIAL GRADE PANCHAYATH, AIR 2001 KERALA 132; paragraph No.5 of the said decision reads as under:

“It is true that the decree granted by the trial Court is for injunction. Nevertheless, it is clear from the reading of a decree that it consists of two independent parts; the 1st 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, wherever violation of that part takes place. The Court below has not considered the question of enforcement of prohibitory part of the injunction with reference to Article 136 of the Limitation Act. On the other hand it assumed that once the mandatory part becomes unenforceable the other part also would be subjected to the same fate. This is clearly erroneous.”

(c) similar question having fallen for consideration of the Hon’ble Bombay High Court in the case of YASHODHABHAI GANESH NAIK GAUNEKAR Vs. GOPI MUKUND NAIK, AIR 2002 BOMBAY 77 the following observations are made at paragraph No.9 which reads as under:

“9. With the aforesaid backdrop, turning to the facts of the present case on hand, it is clear that when the judgment-debtor has suffered civil imprisonment, it must have been on the satisfaction of the Court that the default on the part of the judgment-debtor was willful, deliberate and intentional. A decree for permanent injunction has the effect of restraining the judgment-debtor permanently from obstructing the enjoyment of the property covered in the dec