A. D. DESAI, T. U. MEHTA, J.

( 1 ) THE question which is involved in this appeal is whether putting up of an obstruction on a piece of land which is required to be kept open by a decree of permanent injunction granted by a Civil Court amounts to a continuing wrong as contemplated by sec. 23 of the Limitation Act 1908 or not.

( 2 ) SHORT facts of the case are that the appellant of this appeal is the Kalol District Municipality against whom the present respondents have obtained a decree for perpetual injunction restraining the appellant from alienating 50 feet of public street land situate near Railway Station at Kalol in Mehsana District and directing it to keep the said land open permanently for public road. The said decree was obtained by the Respondents in Suit No. 61 of 1947-48 from the Court of the Civil Judge at Kalol. The decree was passed on 18-4-50. It is found that thereafter several cabins were erected on the disputed land with the result that the Respondents gave a Darkhast for their removal. This Darkhast was registered as Execution Application No 35/50 but it was disposed off as withdrawn on 29-3-1952. Thereafter another Darkhast was given in the year 1957 being Execution Application No. 129/57 but even that Darkhast was withdrawn on 31st August 1959. Thereafter Darkhast No. 142 of 1959 was filed by the Respondents on 5 October 1959 for the removal of these cabins. It is this Darkhast out of which the present appeal has arisen.

( 3 ) THE appellant Municipality has contended in this last Darkhast that the same is barred by limitation in as much as the Second Darkhast which was No 129/57 was not preferred within three years from the date on which the cabins were constructed or within three years from the date on which the first Darkhast was disposed off. The learned Judge of the Executing Court accepted this contention of the appellant-Municipality and dismissed the Execution Application. In appeal which was preferred by the present Respondents before the District Court the said view of the Executing Court was upheld with the result that the present Respondents approached this Court in Second Appeal No. 516 of 1965. This Second Appeal was heard by S. H. Sheth J. who took the view that the wrong which was committed by the construction of the cabins on the disputed land was a continuing wrong which was covered by Section 23 of the Indian Limitation Act 1908 which is hereinafter referred to as the Act and therefore no question of limitation arore in this case. Being aggrieved by this decision the appellant Municipality has preferred this Letters Patent Appeal.

( 4 ) IT is an admitted position that this being an application for executing a decree for permanent injunction Art. 182 of the First Schedule of the Act has no application because sec. 48 of the Civil Procedure Code which bars the execution after the expiration of 12 years from the date of the decree sought to be executed has no application to the cases where a decree granting an injunction has been passed. Art. 182 of the First Schedule of the Act provides for the limitation of the three years from the date of the decree where the decree of a Civil Court which is not provided for by sec. 48 of the Civil Procedure Code is passed. It is obvious that in a decree for permanent injunction the right to file the execution application does not necessarily arise or accrue on the date of the decree because it arises only when a breach of the injunction is committed by the judgment-debtor. That being the position Art. 182 would have no applicat- ion but Art. 181 which is the residuary article and which contemplates the applications for which no period of limitation is provided elsewhere in the First Schedule or by sec. 48 of the Civil Procedure Code applies. The period of limitation in cases where Art. 181 applies runs from the time when right to make application accrues. Therefore in cases where a breach of a permanent injunction granted by a decree takes place limitation

Click Here to Read the rest of this document