The decree for restoration of possession supersedes the limitation based solely on mandatory injunction; thus, the applicable limitation is 12 years under Article 136.

ORAL JUDGMENT:

1. Heard Mr. Sudin Usgaonkar, learned Senior Counsel with Mr. Pooja Naik and Ms. S. Usgaonkar, learned Counsel for the petitioner, Mr. Deepak Gaonkar, learned Counsel for respondent Nos.1 to 5 and Mr. Shailesh Redkar with Ms. K. Desai, learned Counsel for Respondent Nos.6 to 7.

2. Rule. Rule is returnable forthwith with the consent of the learned Counsel for the parties. Matter is taken up for final disposal.

3. The petitioner is challenging the impugned order passed by the learned Executing Court dated 24/01/2019 below Exhibit-14 in Regular Execution Application No.95/2016/F whereby preliminary objections raised by the judgment debtor to the maintainability of the execution proceedings have been up held and execution proceedings have be dismissed as filed beyond the period of limitation.

4. Learned Senior Counsel Shri Usgaonkar appearing for the petitioner would submit that the suit filed by the petitioner was for restoration of possession of the suit land by demolishing the illegal structure erected by the decree holder. The suit was decreed as per the Judgment dated 17/10/2021 in Regular Civil Suit No. 248 of 1975.

5. The petitioner then filed execution proceedings before the trial Court wherein judgment debtor raised objection claiming that the decree is only for grant of mandatory injunction and since execution proceedings filed beyond the period of three years, the same are barred by limitation.

6. The learned Senior Counsel would submit that the Executing Court has completely misconstrued the decree and arrived at an incorrect conclusion. Article 136 of the Limitation Act is attracted and not Article 135 as the decree is combined for restoration of possession by demolishing the illegal structures. He therefore submits that the order impugned in the present petition is perverse and illegal and therefore needs to be quashed and set aside.

7. Per contra, learned Counsel Shri Gaonkar would submit that the decree passed by the learned trial Court has to be considered as the document for the purpose of executing the decree which is for demolition of illegal structures. He would submit that unless illegal structures are demolished, the restoration of possession of the suit land is not permissible.

8. Mr. Gaonkar has placed reliance in the case of Maheboob Sahab through L.R.s v/s. Shivrajappas/o. Maharudrappa Wadje in Writ Petition No.9281 of 2014 decided by the learned Single Judge sitting at Aurangabad Bench.

9. Rival contentions fall for the consideration.

10. The petitioner is the original plaintiff who filed the suit bearing No. 248 of 1975 wherein following relief is claimed in prayer clause:

“Free and vacant possession of the suit land by ordering the Defendants to remove the construction and plantation from the same.”

11. Vide a judgment dated 17/10/2011 the learned Civil Court decreed the said suit by passing the following order:

“ORDER The suit stands decreed.

The defendants are hereby directed to remove and demolish the illegal construction situated in the said plot.

Decree to be drawn accordingly.”

12. Accordingly a decree was drawn which reads thus:

“This is a suit for Eviction filed by Plaintiff against the Defendants and prayed as under:-

“Free and vacant possession of the suit land by ordering the Defendants to remove the construction and plantation from the same” The suit coming on this 17th day of October 2011 for final disposal before Shri C. Fernandes, Civil Judge Senior Division at Margao, in the presence of Learned Advocate Shri E. Correia for the plaintiff and none present for defendants; it is ordered that the suit stands decreed.

The defendants are hereby directed to remove and demol