Exclusion of period as stay or injunction from the period of limitation.

Ratnam, J.

1. The second defendant in O.S. No. 1247 of 1975, District Munsif's Court, Coimbatore is the petitioner in this Civil Revision Petition, which is directed against the order of the executing Court overruling the objection raised by the petitioner that E.P.R. No. 265 of 1982 in O.S. No. 1247 of 1975 filed by the first respondent herein on 12.10.1981 was barred by time.

2. On 7-7-1978, in O.S. No. 1247 of 1975, the first respondent herein obtained an ex parte decree against the petitioner and respondents 2 and 3 herein for a mandatory injunction directing them to demolish the walls at CD and CH noted in the plaint plan and for a permanent injunction as well restraining them from putting up construction on the walls CD and CH. An application in I.A. No. 1433 of 1978 was filed under Order 9, Rule 13, Code of Civil Procedure, praying to set aside the ex parte decree so obtained by the first respondent. Along with that, another application in I.A. No. 1434 of 1978 was also filed praying for stay of execution of the decree in O.S. No. 1247 of 1975 till the disposal of I.A. No. 1433 of 1978. In I.A. No. 1434 of 1978, no order for stay was passed but ultimately, both the applications were dismissed on 21.9.1979. Against the dismissal of I.A. No. 1433 of 1978, an appeal was preferred in C.M.A. No. 157 of 1979 before the District Court, Coimbatore. Pending disposal of that appeal, an application in I.A. No. 2406 of 1979 was filed praying for stay of execution of the decree in O.S. No. 1247 of 1975 till the disposal of C.M.A. No. 157 of 1979. On 19-12-1979, interim stay of execution of the decree in O.S. No. 1247 of 1975 was granted in I.A. No. 2406 of 1979 and that stay enured till 14.4.1980, when C.M.A. No. 157 of 1979 was dismissed and consequent upon the dismissal of the appeal, the interim stay granted already in I.A. No. 2406 of 1979 was vacated and that application was also dismissed on the same day. Thereafter, the first respondent filed E.P.R. No. 548 of 1981 on 10.7.1981 and that petition was eventually dismissed on 18.6.1982. Later, on 12.10.1981, the first respondent filed E.P.R. No. 265 of 1982 in O.S. No. 1247 of 1975 praying that a Commissioner be appointed to carry out the relief of mandatory injunction granted under the decree for the demolition of the walls CD and CH noted in the plaint plan. In columns 3 and 4 of the execution petition, the first respondent had given the date of the decree as 7-7-1978 and also the date of the decree in C.M.A. No. 157 of 1979 as 14.4.1980.

3. In the counter filed by the petitioner, he raised the objection that the execution petition filed by the first respondent was barred by limitation. Besides, the petitioner also stated that by giving the relief prayed for by the first respondent, he would be put to serious hardship and loss and that the prayer of the first respondent was vague and incapable of execution.

4. The executing Court overruled the objections raised by the petitioner and appointed a Commissioner to carry out the relief of mandatory injunction by demolition of the walls CD and CH as noted in the decree and BA and BJ as noted in the Commissioner's plan and directed him to submit a report. It is the correctness of this order that is questioned by the petitioner in this Civil Revision Petition.

5. Learned Counsel for the petitioner first contended that the decree for mandatory injunction was passed on 7.7.1978 and under Article 135 of the Limitation Act, 1963, such a decree should have been put into execution within three years from the date of the decree and as the execution petition in this case was filed only on 12.10.1981, beyond three years from the date of the decree, the execution petition was barred. It was also pointed out that the proceedings taken to have the ex parte decree set aside and the termination of those proceedings on appeal on 14.4.1980 cannot avail the first respondent to claim that the execution petition is in time, as the appeal in C.M.A. No. 1