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Allahbad High Court
T.S.MISRA
Bashir Ahmad - Appellant
Versus
Menhdi Hasan - Respondent
Decided On : 09/15/1981
LIMITATION ACT, 1963 - SECTION 37(2), 38, 39 - SPECIFIC RELIEF ACT - ARTICLE 135, 136 - INJUNCTION - DISTINCTION BETWEEN MANDATORY AND PERPETUAL INJUNCTION - EXECUTION OF DECREE - LIMITATION.
Fact of the Case:
The plaintiff filed a suit seeking a permanent injunction to restrain the defendants from closing a drain and passage, removing a foundation, and interfering with his possession of a Sahan Darwaza. The trial court granted the injunctions as prayed for. The plaintiff filed an execution application more than three years after the date of the decree. The court below held that the execution of the decree for mandatory injunctions (reliefs (a) and (b)) was barred by limitation under Article 135 of the Limitation Act, 1963, but the execution of the decree for perpetual injunction (relief (c)) was maintainable.
Finding of the Court:
The court held that relief (a) sought by the plaintiff was for a perpetual injunction, relief (b) was for a mandatory injunction, and relief (c) was for a perpetual injunction. The court further held that the execution application for the enforcement of the decree for injunction granted by the court below under reliefs (a) and (c) was within time, but so far as it asked for the enforcement of the decree granting mandatory injunction under relief (b) it was barred by time.
Issues: Whether the reliefs sought by the plaintiff were for mandatory or perpetual injunctions.
Ratio Decidendi: The court distinguished between mandatory and perpetual injunctions, holding that a mandatory injunction compels the performance of certain acts, while a perpetual injunction perpetually enjoins the defendant from asserting a right or committing an act contrary to the plaintiff's rights. The court held that relief (a) was for a perpetual injunction, relief (b) was for a mandatory injunction, and relief (c) was for a perpetual injunction.
Final Decision: The court allowed the revision petition in part, holding that the execution petition filed by the decree-holder for enforcing reliefs (a) and (c) only was within time.
2. Bashir Ahmad, the present revisionist had filed a suit against the present opposite parties being Suit No.228 of 1971 in the Court of Munsif, Gonda. That suit was decreed by the Court of II Addl. Munsif, Gonda, on 9-12-1972. The reliefs sought for in the plaint and allowed by the court were as follows :-
(a) A decree for permanent injunction to restrain the defendants from closing the drain of the plaintiff shown by letters H I in the plaint and the passage shown by dotted lines in the plaint.
(b) A decree for permanent injunction directing the defendants to remove the foundation which they had, illegally dug over land K L. M and close the door.
(c) A decree for permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the Sahan Darwaza shown by letters AB P N.
(d) Any other relief which the court deem fit and proper.
(e) Costs of this suit,
The suit was decreed as prayed with ex parte costs and the defendants were ordered not to interfere with the possession of the plaintiff over the land in dispute. The decree-holder filed an application for execution of the said decree on 1-5-1976. An objection was raised by the judgment-debtors that the execution was barred by time. The court below held that by the reliefs (a) and (b) aforesaid the plaintiff had asked for and was allowed mandatory injunction against the defendants. The limitation for executing a decree for mandatory injunction being three years vide Art.131 of the Schedule to the Limitation Act, the execution was held to be barred by time. However, with regard to relief (c) it was said by the court below that it was not a relief for the grant of mandatory injunction, hence the execution for the enforcement of a decree for injunction with respect to relief (e) aforesaid was maintainable. The decree-holder being aggrieved by the order so far as it has disallowed the execution for the enforcement of the decree pertaining to reliefs (a) and (b) has preferred this revision.
3. It was submitted on behalf of the revisionist that by the reliefs (a) and (b) the plaintiff had not asked for any mandatory injunction rather he had asked for a relief for perpetual injunction and therefore, the execution for the entire decree with respect to reliefs (a), (b) and (c) was maintainable and was not barred by time. In order to appreciate the contention of the revisionist, it would be appropriate to reproduce here Articles 135 and 136 of the Schedule to the Limitation Act, 1963 :-
"135. For the enforcement of a decree granting a mandatory injunction.
Three years The date of the decree or, where a date is fixed for performance, such date."
"136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court.
Twelve years "(When) the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place :
Provided that an application for the enforcement or execution of a decree granting a pertual injunction shall not be subject to any period of limitation."
Article 135 prescribes a period of three years for the enforcement of a decree granting mandatory injunction. The time begins to run from the date of the decree or where a date is fixed for performance such date. However, under Art.136 a period of twelve years has been prescribed for the execution of any decree other than a decree granting a mandatory injunction or order of any civil court. The application for the enforcement of execution of a decree granting perpetual injunction is not subject to any period of limitation vide proviso to Art. 136. It has now
to be seen whether the reliefs (a), (b) and (c) sought for in the plaint were the reliefs for the grant of a mandator
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