Execution of petition if can be dismissed

This civil revision petition is filed by the decree-holders against the dismissal of their E.P.No.9 of 1990 for executing the decree obtained by them in O.S.No.303 of 1977 on 110. 1979. The material portion of the decree runs as follows:

"1. That the plaintiffs’ title be and the same is hereby declared to the suit site.

2. That the defendantsdo deliver the possession of the suit property to the plaintiffs.

3. That the defendants do remove the superstructure put by them in the suit site by means of mandatory injunction at their own cost."

So clause 2 of the decree grants possession of the suit site to the plaintiffs/petitioners and since there is a superstructure on the suit site, as per the prayer in the suit, clause 3 grants a mandamus directing the defendants/respondents to remove the said superstructure put up by them in the suit site. The abovesaid E.P. is for executing the said decree for possession and for mandatory injunction to remove the abovesaid superstructure. The Court below has dismissed the E.P. in toto on the ground that the aboversaid clause 3 of the decree being a decree for mandatory injunction, cannot be executed in view of Art.135 of the Limitation Act, which prescribes only a three year period for the execution of the decree. The E.P., was filed on 3. 1990, and as alreday stated, the decree is dated 110. 1979. Since the said three years-period has elapsed, the Court below has refused to execute the decree in toto. Aggrieved by the said order in the E.P. the decree-holders have preferred this civil revision petition.

2. The learned counsel for the petitioners submits that even assuming that the portion of the decree, which grants the abovesaid mandatory injunction is not executable in view of Art.135 of the Limitation Act, the Court below should not have dismissed the E.P.in toto but should have ordered the E.P. in so far as the abovesaid Clause 2 of the decree relating to possession of the suit site. He also submits that the Court below has erred in distinguishing the decision in Duraisami Mudaliar v. Ramasami Chettiar, 92 L. W. 144. In the said case, there was no such mandatory injunction decree, though there was a decree for possession. In that context, this Court in the abovesaid decision observed thus:

"Where, however, the super structure were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in the decree, the proper course in appropriate cases would be to direct the judgment-debtor to remove the superstructures so put up by him so as to effectuate vacant delivery of the suit site to the decree-holder."

But the Court below has held that this decision is not applicable since in that case there was no decree for mandatory injunction for removal of the superstructure. The learned counsel for the petitioners also relied on the decisions in Ramrup Rai v. Gheodhari Kuer, A.l.R. 1980 Pat. 197,Bashir Ahmed v. Menbdi Hasan, A.I.R. 1982 All. 321 and Kauk Sike v. Ong Hock Sein, A.l.R. 1927 Rang. 82, for substantiating his abovesaid argument.

3. On the other hand, the learned counsel for the respondents argues that Duraisami Mudaliar v. Ramasami Chettiar, 92 L.W. 144, is distinguishable since in that case there is a specific decree for mandatory injunction.

4. I have considered the rival submissions. All that the learned counsel for the petitioners argues is that the possession decree, which is lawfully obtained, should atleast be executed, since admittedly there is no bar of limitation with reference to that portion of the decree and that the petitioners should not be in a worse position than a person, who has only obtained a decree for possession of the suit site and not any mandatory injunction decree for removal of the superstructure over it. There is considerable force in the argument of the learned counsel for the petitioners. Because the mandatory injunction decree cannot be executed in view of the law of limitation, it cannot be said that