Executive petition filed whether barred by limitation.

The decree-holder is the petitioner herein. This revision is directed against the order passed in E.P.No.149 of 1979 in O.S.No.22 of 1963. The decree-holder/ plaintiff filed E.P.No.149 of 1979 under O.21, Rule 32, C.P.C., to direct the first defendant in O.S.No.22 of 1963 to obey the decree of permanent injunction as per Clause (1) of the decree, granted by the High Court in A.S.No.454 of 1955 and on failure to obey to commit him to prison. Under Clause (1) of the decree passed in A.S.No.454of 1955 by this Court against the judgment and decree in O.S.No.22 of 1963 the respondent/ defendants 1 and 2 and their men, were restrained by means of a permanent injunction from interferring with the possession and enjoyment of melmadam Vaidyanathasamy temple with its appurtenant. The 1st defendant filed a counter stating that he is a hereditary poojari of the said temple. According to him he is in continuous possession of the temple and he is performing the pooja to the deity. He further submitted that the execution petition filed by the decree-holder is barred by limitation. On considering the facts, arising in this case, the execution court dismissed the execution petition filed by the decree-holder. It is against that order, the present revision has been preferred by the decree-holder.

.2. Learned counsel appearing for the petitioner/ decree-holder submitted as under: It is not correct on the part of the execution court to say that the decree of the High Court in A.S.No.454 of 1955 is not enforceable and the execution petition is not maintainable. Though the suit was originally dismissed by the sub-court on appeal in A.S.No.454 of 1955 it was held that the temple belongs to the petitioner herein and it was also held to be in the possession of the petition. The respondent herein made an admission before the High Court that they are not in possession of the said temple and that the property was not in their occupation. It is not correct on the part of the lower court to say that the portion under the occupation of the respondent is not clearly demarcated. The execution petition was filed on 112. 1978 on the basis that the 1st respondent and his wife are residing there and since they have violated the injunction order and since they are also not performing the pooja the temple is entitled to be put back into the possession, and on failure, the respondent is liable to be commuted to civil prison. The respondent has no consistent case and that the case is governed by the proviso to Art. 136 of the Limitation Act which provides that an apprehension of the enforcement of a decree granting a perpetual injunction shall not be subjected to any period of limitation. Though this article was specifically referred to and the entire arguments were based on the basis of the article itself, it was not considered at all. The respondent’s only objection was that the execution petition was barred by limitation since it was filed after 20 years ignoring the specific terms of Art. 136 of the Limitation Act. Art.136 of the Limitation Act has substituted the old Art.8 which provides for shorter period and it specifically excludes or provides the decree for perpetual injunction will not be subject to any period of limitation and it can be enforced at any time without any time limit. The suit is not for recovery of possession but an application filed under O.21, R.32, C.P.C. for restoring the possession and it is in accordance with the decree of the High Court in A.S.No.454 of 1955, where this Court found that the respondent himself had admitted that he had no title or possession. The decision relied on by the court below has no application after the amendment of Limitation Act and to a case where the Proviso to Art. 136 of the Limitation Act clearly applies. In paragraph 6 of the affidavit the respondent has slated that he have been in enjoyment of the temple from the date of the dismissal of the suit, viz., 21. 1955 which is clearly untenable and