Judgment:
vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh CR No.4171 of 2010 (O&M) [1].***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4171 of 2010 (O&M) Date of decision:30.06.2014 Imperial Hotel and Restaurant PVT.Ltd...Petitioner Versus Sh.
Karnail Singh and others ...Respondents CORAM: Hon'ble Mr.Justice Rakesh Kumar Jain Present: Mr.Ramandeep, Advocate, for Mr.R.S.Bajaj, Advocate, for the petitioner.
Mr.Rajbir Wasu, Advocate, for respondent no.1.
None for respondents no.2 to 5.
***** RAKESH KUMAR JAIN, J.
(Oral) This revision petition is directed against the order dated 21.04.2010 passed by the Civil Judge (Junior Division).Jalandhar by which application filed for execution of the decree dated 30.10.1998 has been dismissed.
In brief, the plaintiff filed suit for permanent injunction to restrain the defendants from raising any kind of construction in front of the plaintiff's passage, shown in red colour in the site plan, or in the alternative for mandatory injunction for removing any type of construction, electric connection and massonary work from the plaintiff's passage.
The suit was decreed by the Trial Court on 30.10.1998.
It was a composite decree, as stated by the petitioner, as not only the defendants were restrained from vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh CR No.4171 of 2010 (O&M) [2].***** raising any type of construction in front of the plaintiff's passage, shown in red colour in the site plan, but also a direction was given to the defendants by way of mandatory injunction to remove any type of construction, khokas, electric connection from the plaintiff's passage, which has been detailed and described in the plaint, within the period of three months from the date of the order.
The judgment and decree passed by the Trial Court was challenged by the two defendants, namely, Kuldeep Singh and Karnail Singh.
The lower Appellate Court maintained the order of the Trial Court and passed another decree which reads “it is ordered that these appeals are found to be devoid of any merit and the same are hereby dismissed but no order as to costs.
However the defendants are directed to remove their unauthorized construction/khokhas within a period of 90 days from today”.It is stated by learned counsel for respondent no.1 that the judgment and decree of the lower Appellate Court dated 16.09.2002 was further challenged by way of Rs.No.4831 of 2002 only by Kuldeep Singh, whereas he is representing the legal heirs of Karnail Singh, defendant no.1 in the suit.
The said appeal was dismissed as not pressed on 17.12.2002 and at that time, six months' time was granted to remove the construction etc.from the suit land in compliance with the decrees passed by the Courts below.
The order passed by this Court was not further challenged by the defendants before the Apex Court and has become final between the parties.
The decree-holder filed an application for execution on 21.07.2006 with reference to the orders passed by all the three Courts and vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh CR No.4171 of 2010 (O&M) [3].***** has prayed that the warrants of removal of illegal encroachment may be issued in favour of the petitioner and against the judgment-debtORS.As a matter of fact, the petitioner was executing the decree with regard to mandatory injunction wherein the judgment-debtors were directed to remove the construction raised in the property of the plaintiff and from the public place.
The application for execution has been dismissed by the Executing Court on the ground of limitation by applying Article 135 of the Limitation Act, 1963 (here-in-after referred to as the “Act”.) in which it is provided that for the purpose of enforcement of a decree for mandatory injunction, the period of limitation is three years from the date of decree or from the date fixed for performance of decree.
It is submitted by learned counsel for the petitioner that it had filed execution application on 21.07.2006, as mentioned in the impugned order.
It is also submitted that because of technicality, he has been deprived of the fruits of the decree, otherwise there is a clear direction issued by the all the Courts to the defendants for removing the obstruction.
On the other hand, learned counsel for respondent no.1 has submitted that even if the limitation is to be counted from the time given by this Court for the purpose of enforcement of the decree, still the execution application has been filed beyond the period of three yeaRs.In this regard, he has submitted that the fiRs.decree was passed by the Trial Court on 30.10.1998 in which three months time was given for the purpose of enforcement of the decree, which is apparently beyond limitation.
The other order was passed by the lower Appellate Court giving 90 days time for the vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh CR No.4171 of 2010 (O&M) [4].***** enforcement of the decree w.e.f.16.09.2002, which comes to 16.12.2002 and for that the execution application could have been filed up to 15.09.2005 or 15.12.2005.
He further submitted that the period of six months, even if counted from the order dated 17.12.2002, is up to 16.06.2003 and the execution application has been filed on 21.07.2006 which is again beyond limitation.
I have heard learned counsel for the parties and after perusal of the record, I am of the opinion that there is no dispute that the execution application filed by the decree-holder for enforcement of the decree for mandatory injunction is beyond limitation as is evident from the application for which the limitation is three years from the date of the order or from the date granted by the Court and if the said period is to be counted even from the period of six months granted by this Court vide order dated 17.12.2002, which comes up to 17.06.2003, the application is still beyond limitation having been filed on 21.07.2006 as the limitation would have expired on 16.06.2006, after expiry of three yeaRs.In view thereof, I do not find any error in the order passed by the Executing Court dismissing the execution application.
Consequently, the present revision petition is hereby dismissed being denuded of any merit.
June 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE