HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P.No. 2875 of 2007 Date : 14-06-2010 Between: Pattabhiramakrishna Raw and Boiled Rice Mill ……… Petitioner and Chundru Seshagiri Rao and others ………. Respondents HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P.No. 2875 of 2007 ORDER: This Revision Petition has been filed challenging the order, dated 12-06-2007 in E.A.No.162 of 2006 in E.P.No.9 of 1994 in O.S.No.193 of 1984 on the file of the Junior Civil Judge, Alamuru. 2. The brief facts of the case are as follows: The first respondent herein is the plaintiff/decree holder in O.S.No.193 of 1984. The said suit was decreed on 23-10-1993. Pending suit, the second respondent herein i.e., R-1 in E.A.No.162 of 2006, died and his L.Rs i.e., R-5 and R-6 in the said E.A., were brought on record. Since R-6 was minor, she was represented by R-5. R-7 and R-8 in the said E.A. are partners of the second respondent- firm in the said E.A. Thus all the respondents i.e., R-5 to R-8 are on record. The first respondent/decree holder filed E.P.No.9 of 1994 under Order 21 Rule 11 of C.P.C. and the prayer is as follows: “As the decree is not implemented as per clause 1, 3, of the decree; as the obstruction is being caused to the DHR to go from R.S.No.76/1 i.e., land shown as ‘P’ through R.S.No.77/4 towards northern side from beside the cattle shed as per clause No.1 and as per Clause No.3 of the decree as the land level of R.S.No.76/2 is not decreased to the level of 76/1, it is prayed that considering the copy of the decree and other material along with the decree plan filed herewith, notice may be issued to the said JDRs. as per Order 21 Rule 32 and as they disobeyed the injunction orders granted by your Court, the properties of JDRs.2, 7 and 8 may be seized and they may be sent to civil prison as per Order 21 Rule 32 C.P.C. and further get the obstructions removed through the Court Amin.” Thus it is clear that the prayer in the E.P. was to seize the properties of Judgment Debtors/R-2, R-7 and R-8 and to send them to civil prison and also to get the obstructions removed through Court Amin. Admittedly the E.P. was filed within a period of two years from the date of decree. The learned Junior Civil Judge passed orders for the arrest of the J.Drs. During the pendency of the E.P., the J.Drs questioned the decree and filed objections. Subsequently, the E.P. was allowed on 09-07-1997 and the Judgment Debtors/R-2, R-7 and R-8 were directed not to cause any obstruction to the decree holder from taking carts, cattle, tractors to his land through the land of the above JDrs covered by R.S.No.77/4 i.e., as per clause 2 of the decree in the E.P., and as per clause 3 of the decree, the JDrs/R-2, R-7 and R-8 were directed to lower the level of “D” marked land of the “P” schedule to the level upto which the water from “P” marked land can flow freely through “D” marked land within a period of 20 days and it was further ordered that failing which the JDrs shall be committed to civil prison. 3. Admittedly the JDrs carried the matter to this Court by filing C.R.P.No.2890 of 2007 and this Court by order, dated 04-08-1997 dismissed the Revision Petition, however, granted two months time to execute the decree. Against the orders of this Court, the JDrs filed Civil Appeal No.4471 of 1998 before the Supreme Court, and ultimately, the Apex Court dismissed the said Civil Appeal on 17- 03-2004. Thus the order in the E.P. stands confirmed. Though there was no stay during the pendency of the Revision in this Court, the fact that this Court granted two months to implement the directions of decree, assumes importance. The dismissal of Civil Appeal by the Apex Court shows that the order of this Court has been confirmed. 4. It is not in dispute that this Court by order, dated 04-08-1997 granted two months time for executing the decree i.e., to lower the level of “D” marked land shown in the plaint schedule as directed in the decree. A reading of the orders of the lower Court gives an impression that stay was granted during the pendency of the Appeal before the Supreme Court. When the matter was carried in Appeal to the High Court and then to the Supreme Court and stay was granted by the Supreme Court, the matter is deemed to be pending till the disposal of the Appeal by the Supreme Court. Admittedly, the Supreme Court dismissed the Civil Appeal on 17-03-2004 and therefore, the time, if any, for calculating limitation starts running from 17-03-2004. 5. The Application in E.A.No.162 of 2006 has been filed on 03-03-2006, under Rule 32 (5) of Order 21 of C.P.C., seeking to appoint the Ameen to carry out the directions of the decree through the process of law. The lower Court allowed the Application. Since E.A.No.162 of 2006 was filed within two years from the date of dismissal of Civil Appeal by Apex Court, the same is clearly within the period of limitation. 6. The sum and substance of the arguments of the learned counsel for the Revision Petitioner is that no stay was granted during the pendency of the Revision Petition before this Court and Civil Appeal before the Supreme Court and that the present Application i.e., E.A.No.162 of 2006 filed by the first respondent/decree holder is barred by limitation, since it was filed beyond the period of three years after passing the decree. 7. The learned counsel for the first respondent-decree holder submits that this Court, by order, dated 14-08-1997 in C.R.P.No.2890 of 1997, granted two months time to the Revision Petitioner/Judgment Debtor to lower the level of ‘D” marked land shown in the plaint schedule as directed in the decree and subsequently stay was granted during the pendnecy of the Appeal before the Supreme Court. 8. Rule 32 (5) of Order 21 of C.P.C. reads as follows: “32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.” 9. Therefore, a decree for specific performance or for non-compliance of the injunction can be executed as per the provision of Sub-Rule (5) of Rule 32 of Order 21 of C.P.C. 10. From the facts and circumstances of the case, it is clear that the E.P. was pending and all the records were submitted to the High Court during the pendency of the C.R.P. and as the matter was pending before the Supreme Court, I am of the view that the E.A. is not barred by limitation as contended by the learned counsel for the Revision Petitioner. It is unfortunate that though the decree was passed as long back as in 1992, the fruits of the decree are not being enjoyed by the decree holders till this date. It appears that technicalities should not come in the way of ultimately doing justice to the parties. Moreover an Application filed under Sub-Rule (5) of Rule 32 of Order 21 of C.P.C. cannot be treated as a fresh Application for execution of the decree. Since it is one of the modes for execution of the decree, which has been confirmed by this Court and ultimately by the Supreme Court, it is clear that the issue of limitation will not come in the way of entertaining such Application and the lower Court rightly allowed the Application. There are no merits in this Revision Petition and the same is liable to be dismissed. 11. Accordingly, the Civil Revision petition is dismissed. No order as to costs. ___________________ B. CHANDRA KUMAR, J Date: 14-06-2010 YCR