The execution of a decree granting perpetual injunction is not subject to any period of limitation, and the claim of mudkarial rights must be substantiated with a valid declaration.

The challenge in this petition, at the instance of the petitioners/judgment debtors, is to the order dated 24.08.2010, passed by the Executing Court in Regular Execution Application No.4/2003/D. By the impugned order, while rejecting the objection of the petitioners, the Executing Court has directed execution of the decree as prayed, including demolition of the structures existing in survey no.69/1 of village Cortalim, Goa.

2. The respondents/decree holders have obtained a decree against the petitioners on 29.08.1990, in the following terms :

“That the suit is decreed and the defendants are declared as trespassers in respect of suit property. Consequently, they are directed to demolish the mud structure admeasuring 15 square metres and two huts admeasuring 5 square metres each and extended portion of the suit structure admeasuring 10-12 square metres and hand over vacant possession of the same. That the defendants, their servants, family members, are also permanently restrained from interfering with the suit property, in any manner. In the circumstances of the case, parties shall bear their own costs.”

3. It is undisputed that the aforesaid decree was challenged in appeal, before the learned District Judge in Regular Civil Appeal No. 38/2004, which has been dismissed on 19.10.2006 and thus, the decree has attained finality, as it was not challenged any further.

4. The respondents filed an application for execution of the decree on 08.05.2003, seeking following assistance from the Court:

“(a) By an immediate order directing the Judgment Debtors from continuing with any construction in or on the suit structure and or to pass an order to maintain status-co of the suit structure.

(b) By directing the Defendants to demolish the illegal structures put up by them in the suit property and restoring the property to its original condition/state.

(c) In the event of the failure to comply with the Court order to lodge the Judgment Debtors in civil prison till compliance of the order.

(d) Alternatively to have suitable orders passed to the Deputy Collector/his representatives to have the illegal structure/extended portion of the suit structure demolish and have them removed from the suit structure.”

5. The petitioners resisted the execution on the ground that the execution application is barred by limitation. It was contended that the respondents have mudkarial rights in respect of the subject structures, about which application for declaration under Section 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (the Act, for short), is pending and there is an order of registration in their favour passed on 03.02.1983. It was contended that thus, the Executing Court ought to have stayed it's hands, awaiting decision in the mundkarial proceedings.

6. Before the Executing Court, the parties led evidence. The learned Executing Court by the impugned order dated 24.08.2010 has directed the execution of the decree, including demolition of the structures existing in survey no. 69/1, which order is subject matter of challenge in this petition.

7. I have heard Shri Shirodkar, the learned Counsel for the petitioners and Smt. Agni, the learned Senior Counsel for the respondents. With the assistance of the learned Counsel for the parties, I have gone through the record and the impugned order passed.

8. Shri Shirodkar, the learned Counsel for the petitioners has raised four contentions (i) that execution application is barred by limitation, as the limitation provided under Article 135 of the Limitation Act is three years from the date of the decree or where a date for performance is fixed from such date; (ii) there is an order of registration as a Mundkar in favour of the petitioners; (iii) an application for declaration and an application for purchase, under the Act are pending before the Mamlatdar and (iv) that the structures, which are directed to be demolished by way of mandatory injunction, are not identified.

On behalf of the pet