Bharti Devi Vs. Fagu Mahto - Court Judgment

Excerpt:
civil procedure code, 1908-order xxi, rule 8-limitation act, 1963-article 136-decree for permanent injunction-such decree would bind not only judgment debtor but also all those persons who claim right as successors in interest of judgment debtor-a decree may be executable promptly or may be executable upon happening of a future contingency-execution of decree would depend upon any subsequent act or conduct on part of judgment debtor or any person claiming right as successor under him-question of executing decree for permanent injunction of restraint would arise if order of injunction is sought to be violated by persons who are bound by order of restraint- objection to maintainability of pending execution proceedings on the ground of limitation would not apply-application dismissed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. d.g.r. patnaik, j.1. heard mr. sanjay kumar dwivedi, learned counsel for the petitioner and mr. r.s. mazumdar, learned counsel for the respondent.2. the petitioner, by this writ application, has prayed for quashing the order dated 28.03.2008, passed by the 02nd munsif, dhanbad in execution case no. 9 of 2003, whereby the petitioner's prayer vide his petition dated-20.09.2007, for dismissal of the execution case, has been rejected.3. facts of the case in brief are that a suit was filed before the court below for mandatory injunction to restrain the defendants, therein, from interfering with the possession and occupation of the plaintiff from the suit lands.4. the matter was contested by the defendants in the suit. the prayer for permanent injunction was allowed by the trial court in favour of the plaintiff and decree was accordingly passed.against the decree, the defendant/judgment debtor preferred an appeal. upon contest, the appeal was dismissed.thereafter, the plaintiff/decree holder filed an execution proceeding before the court below. later, during the pendency of the proceedings, the purported obstructions for which the execution proceedings was initiated, having been withdrawn, the decree holder did not pursue with the execution proceedings, and the matter remained at that.after about 12 years, the decree holder filed a fresh application before the learned munsif for execution of the decree.it appears that during the pendency of this litigation, after the decree was passed, the original defendant/judgment debtor had died. the present petitioner, claiming herself to be the legal representatives of the original judgment debtor, has sought to intervene in the proceeding by filing her objection against the maintainability of the execution proceedings on the ground that such execution proceedings, having been filed after more than 12 years of the date of decree, is barred by the law of limitation and therefore, not maintainable.after considering the submissions made by the respective parties, the learned court below by its impugned order dismissed the prayer of the petitioner by holding that limitation would not effect the present execution proceedings and therefore, the execution proceedings is maintainable.being aggrieved with the impugned order, the instant writ application has been filed by the petitioner.5. learned counsel for the petitioner would want to argue that the original judgment debtor having died, the execution proceedings cannot continue against a dead person and even though the petitioner happens to be the legal representative of the original judgment debtors, the present execution proceedings having been filed beyond the period of 12 years from the date of decree, is not maintainable, since it is barred by the law of limitation. in support of his contention, learned counsel would refer to and rely upon the judgment of this court in the case of bharat ram mahato and ors. v. ramesh chandra sharma and ors. 2007 (1) j.l.j.r. 245.6. as it would appear from the facts of the case, admittedly, the decree was for a permanent injunction against the original defendant/judgment debtor restraining him from disturbing the peaceful possession of the decree holder over the suit property. the effect of a decree for permanent injunction of this nature, is that it would bind not only the judgment debtor but also all those persons who claim right as successors in interest of the judgment debtor.a decree may be executable promptly or may be executable upon the happening of a future contingency. the question of executing the decree for permanent injunction of restraint would arise if the order of injunction is sought to be violated by the persons who are bound by the order of restraint. thus, the execution of the decree would depend upon any subsequent act or conduct on the part of the judgment debtor or any person claiming right as successor under him.7. the petitioner cannot take the plea of limitation as generally applicable to decrees of other nature under article 136 of the limitation act. in a decree for permanent injunction, can it be said that a judgment debtor who intentionally keeps low for a period of 12 years after the decree was passed, can thereafter defeat the right accrued to the decree holder, and defy the order of injunction, claiming that the period of limitation would debar the decree holder enforcing the decree? such a proposition would be irrational and defeat the ends of justice.8. the judgment referred to, by the learned counsel for the petitioner, would not apply in the facts of the present case as because the facts of the aforesaid case relate to execution of a decree, for recovery of possession of the immovable suit property, by evicting the defendants/judgment debtors there from. in the present case, the decree was only for permanent injunction, restraining the defendants/judgment debtors from interfering with the possession of the plaintiff/decree holder over the suit property.9. even otherwise, the execution proceedings, which was earlier filed by the decree holder was not already disposed of by any final order. it would therefore be deemed to be pending. the later application for execution, shall have to be considered as merely one for continuing the earlier proceedings.10. the learned court below, in its impugned order has rightly held that the objection to the maintainability of the pending execution proceedings on the ground of limitation would not apply.11. i do not find any illegality or impropriety in the impugned order. there being no merit in this writ application, the same is dismissed.