IN THE HIGH COURT OF JHARKHAND AT RANCHI

C. M. P. No. 665 of 2022

-----

Amar Kushwaha

… ….

Petitioner

Versus

1. Smt. Moti Sundar Devi

2. Abhimanyu Kumar

3. Abhay Kumar

4. Amarjeet Kumar

… ….

Opp. Parties

-----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

-----

For the Petitioner

: M/s Sudhir Kr. Sharma & R.P. Singh, Advocates

For the Opp. Parties :

-----

Oral Order

02 / Dated : 10.11.2022

1.

The instant civil misc. petition has been filed under Article 227 of the

Constitution of India for quashing the order dated 30.07.2022 passed by the

Civil Judge (Sr. Div.)-II, Dhanbad in M.C.A. Case No. 321 of 2022 (Civil

Execution Case No. 22 of 2022) whereby the petition dated 16.07.2022 under

Section 47 of C.P.C., 1908 has been dismissed. Civil Execution Case No. 22 of

2022 arises out of Title Suit No. 186 of 2005 which was filed by Krishna Prasad

original plaintiff and the present petitioner- Amar Kushwaha was the defendant

in the suit. The suit was filed for declaration of title and confirmation of

possession of the schedule property and also for a decree for permanent

injunction.

2.

The suit ended in a compromise and the decree was drawn on

02.03.2007. The petition for execution was filed on 07.01.2022 after a lapse of

14 years.

3.

The petitioner challenged the execution proceeding under Section 47

of C.P.C. mainly on the ground of limitation and that with respect to the same

relief Title Suit No. 300 of 2015 had been filed by the plaintiff decree holder in

which it had been pleaded that he had allowed the defendant to use and stay over

the schedule land till the payment of full and final consideration money.

4.

The petition was rejected by the Court below principally on the

ground that under Article 136 of the Limitation Act for execution of decree of

perpetual prohibitory injunction no limitation period shall apply. With regard to

Title (Ejectment) Suit No. 300 of 2015 learned Court below rejected the plea

relying on the ratio decided in AIR 2009 Punjab and Haryana188.

5.

Learned counsel for the petitioner submits that the ratio of the said

judgment relied upon by the Court below does not apply to the facts and

circumstances of the present case. The ratio of the judgment is that the decree

for specific performance of contract and injunction restraining judgment debtor

from forcible dispossession. The decree holder cannot be required to file

another suit as he had already obtained a decree in his favour.

6.

The matter involves execution of compromise decree passed in T.S.

186/2005 against the judgment debtor-Amar Kushwaha (petitioner). On the

objection filed under section 47 of the C.P.C., Miscellaneous Civil case

no.321/2022 was registered. The objection filed under section 47 has been

rejected, against which the present petition has been preferred.

7.

The learned court below has rightly held that that there was no

limitation prescribed under the Limitation Act for execution of decree of

perpetual prohibitory injunction. The second plea of pendency of title ejectment

suit no.300/15 will be of no avail to the petitioner, as the execution proceeding

cannot be stayed and the decree holder cannot be restrained from prosecuting

other legal remedies against the same party for a different relief. If at all, the

matter substantially in issue, is directly and substantially in issue in the pending

suit between the same parties, petitioner is at liberty to raise appropriate plea in

that suit. This will however be not available to stay the execution proceeding.

The civil miscellaneous petition stands dismissed.

(Gautam Kumar Choudhary, J.)

AKT