IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 CRP.No. 424 of 2010() --------------------- AGAINST THE ORDER DATED 24/06/2010 IN EP.134/2005 IN OS.559/1996 of MUSNIFF COURT,ADOOR .................... REVN. PETITIONER/JUDGMENT DEBTORS: ------------------------------------- 1. KUNJAN PILLAI PRABHAKARAN PILLAI MUNDUTHONDALIL VEEDU, NEDUMON MURI, EZHAMKULAM VILLAGE, 2. JANAKI AMMA CHELLAMMA OF -DO- -DO- BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN SMT.LEENA MURALI RESPONDENT/ DECREE HOLDER: ---------------------------- SREEJA S NAIR, D/O.BHANUMATHI AMMA, CHERUPULICKAL VEEDU@PAALAVILA PUTHEN VEEDU, NEDUMON MURI, EZHAMKULAM VILLAGE. ADV. SRI.KALEESWARAM RAJ FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.424 of 2010 --------------------------------------- Dated this 17th day of September, 2010 ORDER Judgment debtors in E.P.No.134 of 2005 in O.S.No.559 of 1996 of the court of learned Munsiff, Adoor challenge the order dated June 24, 2010 holding that execution petition is not time barred and that it is to be proceeded with further. Respondent sued petitioners for fixation of boundary, mandatory injunction and recovery of damages. A decree was passed for mandatory injunction directing petitioners to remove the wire fencing made in plaint A schedule property and allowing respondent to recover Rs.9750/- with interest thereon @12% per month from 15-11-1997 till realisation by way of damages. No decree was granted for fixation of boundary. Respondent filed E.P.No.134 of 2005 to execute the decree for mandatory injunction and for recovery of damages. That petition was opposed by petitioners contending that execution of the decree to the extent it concerned the mandatory injunction is barred by limitation since the decree was passed on 17-10-2002, period of limitation prescribed for execution of decree for mandatory injunction is three years and that execution petition is filed after the expiry of the said period and hence is time barred. C.R.P.No.424 of 2010 : 2 : Executing court overruled the objection holding that it is a composite decree for mandatory injunction and recovery of damages and hence Article 135 of the Limitation Act (for short, “the Act”) would not apply. Learned counsel for petitioners contend that the view taken by executing court is erroneous and that decree for mandatory injunction is not dependant on the decree for recovery of damages or vice versa and hence as regards the execution of decree for mandatory injunction Article 135 of the Act should apply. Learned counsel for respondent contended that in view of the observations in paragraph 23 of judgment it is open to the respondent to fix boundary at any time he wished and hence execution of the decree relating to mandatory injunction cannot be said to be time barred. 2. I have been given a copy of the judgment. In paragraph 23 learned Munsiff has observed that respondent is entitled to erect boundary of his choice in his property within the survey boundary line subject to the relevant rules for which a decree is not needed. It is relevant to note from paragraph 16 of the judgment that learned Munsiff has referred to the decision in a previous suit – O.S.No.247 of 1980 as binding on the respondent and held that the suit is partly barred by res judicata. Whatever be the reason thereof, learned Munsiff has refused to grant a decree for fixation of boundary and what has been granted in only a decree for C.R.P.No.424 of 2010 : 3 : mandatory injunction and recovery of damages. Those two reliefs cannot be said to be dependant, nor am I inclined to accept the argument that it is a composite decree. Hence the view taken by the executing court that prayer for execution of the decree to the extent it concerned the mandatory injunction is not time barred, cannot be accepted in the light of Article 135 of the Act and as the execution petition is filed beyond three years of date of decree. However, prayer in the execution petition for recovery of damages is not time barred and it is also not so contended before me. Hence it is open to the executing court to proceed with execution to the extent it concerned recovery of damages. Resultantly, this writ petition is allowed and order dated 24-06-2010 to the extent it related to execution of decree for mandatory injunction is set aside and it is held that execution petition to the extent it concerned that part of the decree is barred by limitation. It is open to the executing court to proceed with execution petition to the extent it concerned recovery of damages. I also make it clear that this order does not in any way affect the observation made by learned Munsiff in paragraph 23 of the judgment. (THOMAS P JOSEPH, JUDGE) Sbna/-