1 W.P. No.6721/2011 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR. SB : Hon'ble Shri Justice Sujoy Paul Writ Petition No.6721 of 2011 Khilan and four others vs. Lal Singh and another AND Writ Petition No.7487 of 2011 Khilan and four others vs. Lal Singh and another -------------------------------------------------------------------------------------------------- Shri M.K.Jain, Advocate for the petitioners. Shri Arun Dudawat, Advocate, for the respondent No.1. -------------------------------------------------------------------------------------------------- O R D E R (28/11/2011) Since both these matters are interconnected, with the consent of parties the matters are analogously heard and decided by common order. Brief facts necessary for adjudication of this matter are as under:- The trial Court passed its common order in Cases No. 71A/1987 and 58A/1989 dated 2.1.1998. A perusal of this order shows that the trial Court rejected Case No. 71A/1987 and granted relief in Case No. 58A/1989. Shri M.K.Jain, learned counsel for the petitioners submits that the judgment passed in Case No. 58A/1989 was not challenged by him by filing any proceeding. However, the order passed in Case No. 71A/1987 was called in question in further proceedings and ultimately, it traveled to this Court in Second Appeal No. 296/2001. This Court passed the order on 15.9.2010 and found that dismissal of Case No. 71A/1987 was proper and accordingly appeal was rejected. Shri M.K.Jain submits that this Court gave a finding that no appeal was filed against Case No. 58A/1989. 2. Lal Singh and others filed Execution Case No. 58A/89-2010-11 on 28.3.2011 for seeking execution of the judgment and decree passed in Civil Suit No. 58A/1989. In the said execution proceedings, present petitioners filed an application for rejecting the execution proceedings on the ground that the same are filed after 12 years, the period of limitation prescribed under the Limitation Act. This objection/application of the 2 W.P. No.6721/2011 petitioners is rejected by the court below by order dated 20.9.2011, which has given rise to Writ Petition No. 7487/2011. Writ Petition No. 6721 of 2011. 3. The bone of contentions of Shri Jain is that no proceedings were filed against the judgment passed in Case No. 58A/1989 and it had attained finality on 2.1.1998 itself and, therefore, execution proceedings which were filed after 12 years are not maintainable. 4. Per Contra, Shri Arun Dudawat, learned counsel for the respondent No.1 submits that a minute reading of Annexure P/4, page 33 (overleaf) shows that the proceeding before this Court was filed in Civil Suit No. 71A/ 1987 and in Civil Suit No. 58A/1989. Apart from this, Shri Dudawat while relying on petitioners' pleadings in para 5.3 (page 4) submits that the petitioners themselves have stated that Civil Suit No. 71A/1987 was filed by petitioners for declaration of title and perpetual injunction. He by placing reliance on Article 136 of Limitation Act, 1963 submits that there is no limitation for execution of a decree granting perpetual injunction. He relied on following portion of the Limitation Act:- “136. For the execution of any Twelve years xxx xxx decree (other than a decree xxx xxx granting a mandatory injunction) xxx xxx or order of any civil court. Provided that an appli- cation for the enforce- -ment or execution of a decree granting a per- petual injunction shall not be subject to any period of limitation.” Writ Petition No. 7487/2011 5. In this case the facts are that after filing of execution proceedings by Lal Singh, the petitioners filed a suit for declaration on the ground of adverse possession. In nutshell, the contention of Shri M.K.Jain is that his clients are in possession for more than twelve years and, therefore, they are entitled to continue on the basis of adverse possession. This has been rejected by the court below on 20.9.2011 giving a finding that no prima facie case is made out and the case of Lal Singh is within limitation. Against this, this second petition is directed. 6. I have heard learned counsel for the parties at length and perused 3 W.P. No.6721/2011 the record. 7. The Apex Court in (2004) 8 SCC 724 (Chandi Prasad and others vs. Jagdish Prasad and others) held as under:- “In terms of Article 136, Limitation Act, 1963, a decree can be executed when it becomes enforceable. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) CPC would be enforceable irrespective of the fact whether it is passed by the trial Court, the first appellate court or the second appellate court. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be considered to be the starting period of limitation.” 8. Reading this judgment along with Article 136 makes it clear that the execution proceedings filed by Lal Singh and others were well within time and court below has not committed any error in entertaining the same. 9. So far the claim of petitioner Khilan Singh regarding adverse possession is concerned, it is relevant to note that a judgment and decree is passed against them, which has attained a finality till this court and despite orders against the petitioners' determining their right, they avoided to comply with the judgment and decree. This compelled the other side to file execution proceedings. These facts make it crystal clear that petitioners are trying to take advantage of their own wrong. On one hand, they lost the battle till this Court and despite that, did not permit the other side to enjoy the fruits of litigation and, on the other hand, now taking advantage of their own inaction and illegally by taking plea of adverse possession, filed the second suit and in that suit filed an application under Section 151 CPC, which has been declined by the court below by order dated 20.9.2011. In the considered opinion of this Court, the court below has assigned cogent reasons and has not committed any error of law in rejecting the said application. It is profitable to note the following passage from a Supreme Court judgment. The Apex Court in (2007) 11 SCC 447 (Kusheshwar Prasad Singh v. State of Bihar) held as under:- “14. In this connection, our attention has been invited by the 4 W.P. No.6721/2011 learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal (AIR 1961 SC 1353) wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advance of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). 15. In Union of India vs. Major General Madan Lal Yadav (1996) 4 SCC 127) the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.” 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”. 10. The basic principle flowing from this judgment is that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong.” This is a settled legal principle and as per the legal maxim, which reads as under:- “Commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).” 11. In this view of the matter, it does not lie in the mouth of petitioner 5 W.P. No.6721/2011 Khilan Singh to say that since he is in possession for last twelve years, he has acquired a right of adverse possession. Once the judgment and decree of 1998 passed against him has attained a finality, he has no legal ground to claim right on the basis of adverse possession over the land in question. 12. In the result, both the petitions are dismissed. No costs. (Sujoy Paul) Judge (Yog)