1 CRA NO.92/2006. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.92/2006. Hasarsing Pahadsing Rajput (Died on 1.8.1982) through his legal Representatives, - 1) Nathusing Hasarsing Rajput, Age: 48 Yrs., ocu. Service, 2) Smt. Pranbai Hasarsing Rajput, Age: 73 Yrs., occu. Household, Both r/o Mafatlal Colony, Baithi Chal, Block No.17, Room No.93, Navsari, District Balsad (Gujrat) 3) Saw.Dariabai Padamsing Rajput Age: 53 Yrs., occu. Household, R/o C/o Padamsing Zipa Rajput Dhirubhaichi Wadi, Bijalpur, Navsari (Gujrat). 4) Saw. Chandanbai Barkusing Rajput Age: 50 Yrs., occu. Household, R/o C/o Barkusing Sardarsingh Rajput, Shivajinagar, Bijalpur, Navsari (Gujrat). - PETITIONERS (Orig.Plaintiffs) VERSUS 1) Ratansing Bhagwansing Raul, Age: 60 Yrs., occu. Agril. 2) Dhansing Bhagwansing Raul, Age: 52 Yrs., occu. Agril. 3) Narayansing Bhagwansing Raul, 2 CRA NO.92/2006. Age: 47 Yrs. occu.Agril. 4) Smt. Chandrakaurbai Bhagwansing Raul (deleted as per court’s order dt. 4.1.2004) Respondent Nos. 1 to 4 are r/o Lamkani, Tq. and Dist. Dhule. 5) Smt.Gangabai Indrasing Rajput, Age: 62 Yrs., occu. Household, r/o Hare-Pimpalgaon, Tq. Shrirampur, Dist. Ahmednagar 6) Smt.Bhimabai Udaysing Rajput Age: 58 Yrs., occu. Household, r/o Hare-Pimpalgaon, Tq. Shrirampur, Dist. Ahmednagar. 7) Smt. Akkabai Thansing Girase Age: 38 Yrs., occu. Household, r/o Wadi, Post Devi, Tq. Sindkheda, Dist.Dhule. - RESPONDENTS (orig.Defendants) ***** Mr.HV Tungar, Adv. h/for Mr.CR Deshpande,Advocate for Petitioners; Mr.PB Patil, Adv. for Resp.Nos.1 to 3 & 5 to 7. ----- CORAM : K.U.CHANDIWAL,J. DATE : 30th November,2010. ORAL JUDGMENT : 1) Heard extensively. 3 CRA NO.92/2006. 2) Rule was granted on 25.7.2007. 3) Regular Civil Suit No.311/1975 moved by the petitioner/plaintiff was dismissed. He preferred an appeal being Regular Civil Appeal No.8/1979 before the learned District Judge, Dhule. The learned 2nd Extra Assistant Judge, Dhule, set aside the order of dismissal, decreed the suit by following order, - “ The appeal is allowed. The judgment and decree of the trial court is set aside and it is declared that the plaintiff has become owner of the suit property. The defendants are restrained perpetually from interfering in any manner the possession of the plaintiff over the suit land. In the circumstances of the case, no order as to costs.” 4) After the said decree of the Appellate Court, the petitioners moved Execution Petition being Regular Darkhast No. 130 of 1993 before the learned Executing Court, Dhule, informing the learned District Judge that the original plaintiff was in possession of the property in question, however, in spite of knowledge of the decree, the respondents (judgment-debtors) were prohibiting agricultural operations of the petitioners; they are prohibiting from even sowing operations. Consequently, they took recourse to order 21 Rule 32, CPC to detain the 4 CRA NO.92/2006. respondents in civil prison and also claimed damages of Rs.15,000/-. 5) The said Darkhast was contested; evidence was adduced by both the parties. The learned Executing Court recorded that though there operates a decree, however, it is not proved that the order came to be served upon the respondents by the petitioners/plaintiff. The learned Judge also observed, - “Therefore there is reason to believe that the possession remained to be with the respondent for more than 12 years as contended by the respondent in his say.” 6) It was argued by Mr.Patil for the respondents that for a period of more than 12 years, the decree was not executed passed by the Appellate Court in the appeal No.8/1979. The order of the Appellate court was ex parte and not binding on the respondents. The learned Counsel also submits that CRA is not maintainable as it is challenge to Section 47 coupled with order 21 Rule 32 CPC, and hence it warrants filing of an appeal. In order to substantiate his point, he has relied to the judgment in the matter of Shivdhari Gope and Ors. Vs. Anant Poddar and Ors., reported in AIR 1971 PATNA 121, wherein an appeal was preferred and it was dismissed. The Patna High Court in paragraph 4 have observed, as 5 CRA NO.92/2006. under, - “For the reasons stated above, I hold that the appeal was maintainable and the learned Subordinate Judge failed to exercise his jurisdiction in dismissing the appeal in limine on the ground that it was not maintainable. Accordingly, I allow this application, set aside the order of the learned Subordinate Judge and sent back the case on remand to him for disposal of the appeal (Miscellaneous Appeal No.33 of 1968) on merit in accordance with law. There will be no order as to costs of this Court.” 7) Mr.Patil next contended that Article 136 of the Limitation Act prescribes limitation for execution of any decree. The proviso thereof excludes such limitation for a decree granting perpetual injunction. In spite of such carving by the proviso, according to him, there should be a reasonable time to execute the decree and it should not be in perpetuity. In order to stress his point, he has taken recourse to the judgment in the matter of Collector of Central Excise, Jaipur Vs. Raghuvar India Limited, reported in 2000 DGLS (Soft.) equivalent citation, - 2000 (5) SCC 299. The Hon’ble Lordships of the Apex court observed, “ However, when there was no limitation prescribed for exercise of power affecting the civilian right, the Court can held that such power to 6 CRA NO.92/2006. be exercised within reasonable time. Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of powers had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period.” 8) The learned Counsel also in the same situation took recourse to the Judgment in the matter of Mohamad Kavi Mohamad Amin Vs.Fatmabai Ibrahim, reported in 1996 DGLS (Soft.) 1265, equivalent citation, - 1997 (6) SCC 71. The Hon’ble Lordships of the Apex Court in the matter of tenancy case, after the transfer having taken place in the year 1972 found that suo motu inquiry was started by the Mamlatdar in September, 1973 and, therefore, he declared the sale-deeds as invalid. The Apex Court observed that, The appellant is likely to suffer irreparable injury as he had made investments after the purchase. 9) The limitation for execution of a decree in terms of Article 136 illustrate 12 years. The 7 CRA NO.92/2006. legislature has with intention rescinded the prescribed period of limitation for execution of decree for perpetual injunction. This is with paramount object, the decree of perpetual injunction, though innocuous in nature, if violated after a decade or later in point of time, the effect of such decree should not be null and void and should not remain a waste paper to be eschewed. To have enforceability to such decree, proviso is added in Article 136 of the Limitation Act, 1963, thereby removing the hurdle and ban of period of limitation. These aspects are altogether different than the situation emerged in the above referred two apex court’s judgments. 10) The learned Counsel also submits that there should be limitation at least from the date of cause of action. No quarrel on this. This is so reflected in the execution petition itself, informing that such cause of action accrued to the petitioners in the year 1992-93 with the specified dates. 11) The contentions that the respondents are in possession of the disputed property may be true, but it is certainly obliterating the effect of the decree recorded by the first Appellate Court. The respondents did not challenge the said decree, even if it is branded to be an ex 8 CRA NO.92/2006. parte decree. Its effect will not be nullified unless it is set at rest by the competent court. The net result is, the decree that has been recorded by the learned Judge of the First Appellate court having its binding force on the respondents, the respondents cannot be permitted to claim that they are in possession of the property and, therefore, they have right to remain it or to obstruct the so-called possession of the petitioners. 12) The observations of the learned Executing Court in paragraph 13 quoted herein above are out of context and even contrary to the settled legal position as the learned Executing Court had no business to observe that it is not proved that the order came to be served upon the respondents by the petitioners. The scanning of the evidence is also unfortunately ill-founded and ill-informed. 13) Mr.Patil also took recourse to the judgment in the matter of Shakuntala Devi Jain Vs. Kuntal Kumari and Ors, reported in AIR 1969 SC 575. In the said matter, the controversy was as regards determination of any question within Section 47 is a decree and the appellant can file an appeal from the order under Section 96 Rule 1 of CPC. To revert back, it was an 9 CRA NO.92/2006. execution petition, in which an application under Order 21 Rule 32 CPC was moved, rejection thereof, having foreclosed the doors for the petitioner, it has reached finality and in terms of proviso to Section 115 of CPC, the revision is maintainable. 14) The above discussion illustrate the learned Judge erred in making the observations and that too at the stage of execution of the decree, when he was not called upon to comment on merits of the petitioner’s case. Consequently, the order dismissing the execution petition under Order 21 Rule 32 CPC dated 15.11.2000 is set aside. The learned Judge, seized with the matter, i.e. Regular Darkhast No.130/1993 shall deal with the urge/request of the petitioners on its own merits. The petitioners herein hall make another application to the learned Executing Court in the above Darkhast, as would be permissible in terms of various sub-sections of Order XXI Rule 32 of CPC. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/ Authentic copy (BD VADNERE,PS)