Execution petitions for mandatory injunctions must be filed within three years; failure renders them time-barred.

ORDER

Heard Mr.R.Ramanlaal, the learned Additional Advocate General appearing for the petitioners and Mr.T.Balaji the learned counsel for the respondent.

2. The revision is at the instance of the Judgment Debtors in the execution petition in E.P.No.56 of 2022 in O.S.No.7 of 2011 before the learned Principal District Munsif, Erode.

3. The respondent/plaintiff has filed O.S.No.7 of 2011 seeking the relief of mandatory injunction to direct the revision petitioners to effect mutation of revenue records in the name of the plaintiff. The said suit came to be decreed on 10.10.2011.

4. According to Mr.R.Ramanlaal, learned Additional Advocate General, appearing for the petitioners, the execution petition was filed only on 28.07.2022 and the Limitation Act imposes a term of only three years for executing a decree for mandatory injunction and admittedly, the execution petition has not been filed within the prescribed period of Limitation. He has referred to Article 135 of Limitation Act in this regard, which is extracted here under: Limitation Act, 1963

5. He would therefore state that the execution petition itself is not maintainable and therefore the order of arrest passed by the executing Court is also bad in law and liable to be set aside. It is also state that subject suit property is water body.

6. Per contra, the learned counsel appearing for the respondent states that though the decree was passed on 10.10.2011 and a third party challenged the said decree by filing a suit in O.S.No.51 of 2012 before the Principal District Munsif Court, Erode and subsequently, the suit came to be dismissed and the petitioner had approached the Revenue Divisional Officer who had also recommended for issuance of patta to the plaintiff, in proceedings vide NA.KA.No.9824/2014/A7 dated 26.09.2014. He would therefore state that the execution petition is within time and cannot be dismissed on the ground of being barred by limitation.

7. I have carefully considered the submissions advanced by the learned Additional Advocate General appearing for the petitioners and the learned counsel for the respondent.

8. As already discussed, the decree was passed in O.S.No.7 of 2010 on 10.10.2011 and in terms of Article 135 of the Limitation Act, the decree for mandatory injunction has to be executed within a period of three years from the date of the decree, or where a date is fixed for performance, such date. Admittedly, in the present case, no date has been fixed for performance and therefore the time available for executing the decree would consequently be three years from the date of decree i.e., 10.10.2011. Admittedly, the execution petition has been filed only on 28.07.2022, beyond the period of three years prescribed under Article 135 of Limitation Act.

9. In view of the above, there is clear a bar for the Decree Holder to execute the decree and therefore the executing Court ought not to have proceeded to hear the execution petition and pass order of arrest.

10. In view of the above, I am inclined to set aside the impugned order dated 14.07.2023 in EP.No.56 of 2022 and also hold that the execution petition is time barred and not maintainable in law. Hence, the execution petition stands dismissed. However, the learned counsel for the respondent/plaintiff seeks for liberty to move the Writ Court in view of the recommendation of the Revenue Divisional O