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S. B. Civil Revision Petition No.17/2007

(Ram Dayal v. Legal Representatives of Babulal)

Date of Order: :: :24-01-2007

HON'BLE MR. JUSTICE PRAKASH TATIA

Mr.S.N.Trivedi, for Petitioner.

Heard learned counsel for the petitioner.

It is worthwhile to mention the facts because of the reason

that a suit was filed against one Babulal for prohibitory and

mandatory injunction which was decreed by the trial Court on

17^th September, 1958. According to the learned counsel for the

petitioner, the trial Court granted prohibitory as well as

mandatory injunction decree and thereby the trial Court directed

the defendant to remove the wall in question and this direction

was against the defendant Babulal. It is also provided that in

case the judgment-debtor Babulal will not remove the wall in

question, the decree holder will be free to remove the wall in

question, at the cost of the judgment-debtor. The decree-holder

sought execution of the decree dated 17^th September, 1958, by

submitting this execution petition after 45 years, in the year,

2003. The judgment-debtor raised objection that execution is

barred by time. The Executing Court dismissed the execution

petition of the decree-holder by the order dated 24^th August,

2006 after holding it barred by time. Hence, this revision

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petition.

Learned counsel for the petitioner submitted that the

decree dated 17^th September, 1958 was two-fold; one direction

to the defendant to remove the wall and another allowing the

plaintiff to remove the wall, in case the defendant failed to

remove the wall. According to the learned counsel for the

petitioner, not only this, but, for the same relief, another suit

was filed and that was decreed by the trial Court on 13^th

December, 1996 and the First appeal against the said decree

was dismissed by the First Appellate Court on 6^th September,

2002 and, thereafter second apeal, by this High Court by

judgment dated 21^st July, 2006. According to the learned counsel

for the petitioner, even if the direction against the defendant for

removal of the wall cannot be enforced as it may have become

barred by time, but so far as the right of the decree-holder to

remove the wall when the defendant did not remove the wall,

the execution is not barred.

So far as the execution of the decree of removal of wall

against the defendant judgment-debtor is concerned, that

became enforceable with the passing of the decree on 17^th

September, 1958 and decree could have been executed within a

period of limitation,i.e., 12 years, whereas the execution petition

has been filed after 45 years, therefore, the decree was rightly

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held to be barred by limitation. So far as alternate plea, i.e., in

case the defendant fails to remove the wall, then the plaintiff's

right to remove the wall by executing the decree is also a decree

executable immediately with the passing of the decree as he

could have executed the decree forthwith for this relief also

within the period of 12 years only. The decree-holder could

have asked for direction against the defendant for removal of

wall and in case of his failing, the plaintiff could have sought

the Court's help for removal of the wall at the cost of the

defendant judgment-debtor. In view of the above, this plea is

also not available to the defendant.

Learned counsel for the petitioner has relied upon the

judgment of the Kerala High Court delivered in the case of

M.J.Simon v. Special Grade Panchayat, Athirampuzha (AIR 2001

Kerala 132), wherein the Kerala High Court held that in case of

composite decree of enforcement of duties of defendants

through mandatory injunction and other for restraining him from

doing certain things, held that no limitation is provided for

execution of the decree granting prohibitory injunction