1. This Revision under Article 227 of the Constitution is directed against the order of the Execution Court in dismissing E.P. 2 of 2009 which was filed for executing a decree of mandatory injunction, on grounds of bar of limitation.

2. The facts relevant for the current purpose are:

(a)On 20-01-2005, the petitioner had obtained a decree for declaration of his right of pathway over the suit property, a consequential decree for prohibitory injunction that the defendants should not interfere with petitioner's said right of way, and for mandatory injunction to clear the obstruction on the pathway if it had been made.

(b)The petitioner had obtained the copy of the said decree on 16.03.2005. He laid the Execution petition on 13-10-2008.

(c)The Execution Court has held that, inasmuch as the time prescribed under Article 135 of the Limitation Act, 1963, for seeking execution of a decree of mandatory injunction, is three years, the Execution petition ought to have been filed latest by 15-03-2008, and since the E.P. was filed only on 13-10-2008, the same is barred by limitation.

2. Placing strong reliance on the authority in Onidpudur Weavers Co-operative Production and Sales Society Ltd., Rep.by its Special Officer, & Others Vs Velumani & Others [AIR 1977 S.C. 1259], the learned counsel for the petitioner would argue, that the decree is not the one for mandatory injunction simpliciter, but it is an allied relief to the decree of declaration of petitioner's right of pathway and also a prohibitory decree that such right should not be interfered with. Consequently, de hors the mandatory injunction, the petitioner is entitled to enforce the prohibitory injunction. Reliance was also placed on M.A.Raja Vs S. Vedhantham Pillai & four others [2000(II) CTC 199], Kannu Gounder Vs Natesa Gounder [2004-3-LW 43] and Sampath Nattar Vs Gnana Sivam (deceased) & Others [indiankanoon.org/doc/488148]

3. Heard the learned counsel for the Respondent/Judgment Debtor. His arguments are along the lines of the reasoning of the Execution Court.

4. The facts now before this court bear a strong similarity to the facts in Onidpudur Weavers Co-operatives case [AIR 1977 SC 1259]. In that case, a decree was passed declaring plaintiff's right of user of a road, coupled with a decree for injunction, and when the decree of injunction was disobeyed, the decree holder approached the Execution Court with a prayer to appoint a commission for removing the obstruction made and for arrest of the Judgment-debtor. The Execution Court appointed the Commissioner for removing the obstruction made. This was challenged and the matter reached the Supreme Court. It was contended before the Supreme Court that the order passed by the Execution Court could be made only where a mandatory injunction was required to be executed and not otherwise. Rejecting the same the Supreme Court held:

“5. In this case, there is a decree declaring the respondents' right to use the pathway and an injunction restraining the appellants from interfering with such right. When the respondents, decree-holders, found that the pathway is so covered with thorny tushes that the right of pathway declared in their favour could not be properly exercised, normally they are entitled to clear the thorny shrubs for facilitating their use of the pathway. But when it was found that the appellants, Judgment-debtors, resisted that attempt of the respondents, decree holders, in clearing the thorny shrubs found on the pathway, naturally they have to approach the Executing Court complaining that the judgment-debtors who have been restrained from interfering with the user of the pathway by the decree-holder are obstructing the clearance of the thorny shrubs and therefore they have virtually disobeyed the orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the Code is not invoked by the decree-holders on the ground that the appellants as judgment-debtors have not performed any positive act directed by the Court