Y. Lakshmamma And Another v. G. Thyagaraju .

Whether the period spent by the decree holder before the appellate Court where a limited stay was granted would save the period of limitation for the execution of the decree under Article 135 of the Limitation Act, in view of Section 15 of the Limitation Act is the question of law arises in this revision.

2. The revision petitioners are the defendants in O.S.No.548 of 1995 on the file of the Principal Junior Civil Judge, Kurnool. The respondent herein is the decree holder in the suit. I shall refer to the parties as they are arrayed in O.S.No.548 of 1995.

3. The plaintiff filed the suit in O.S.No.548 of 1995 against the defendants seeking for a mandatory injunction for the removal of the constructions on the public road. The defendants in their turn filed O.S.No.283 of 1995 on the file of the same Court for a simple perpetual injunction. Both the suits were clubbed and tried jointly by the trial Court. Through a common judgment dated 05.04.1999, O.S.No.548 of 1995 was decreed and O.S.No.283 of 1995 was dismissed. The defendants preferred A.S.No.51 of 1999 from the judgment in O.S.No.548 of 1995 and the defendants also preferred A.S.No.52 of 1999 from the judgment in O.S.No.283 of 1995. Again through a common judgment dated 25.02.2001, both the appeals were dismissed. Curiously, the defendants preferred Second Appeal No.414 of 2001 from the judgment in A.S.No.52 of 1999. No Second Appeal was preferred from the judgment in A.S.No.51 of 1999. Thus, the judgment and decree in O.S.No.548 of 1995 as confirmed by the judgment in A.S.No.51 of 1999 has become final.

4. So far as O.S.No.283 of 1995 is concerned, as the dismissal of the same was confirmed through the judgment and decree in A.S.No.52 of 1999, a Second Appeal was preferred in S.A.No.414 of 2001. The High Court was pleased to direct both the parties to maintain status quo, through the order dated 24.06.2001 in the Second Appeal No.414 of 2001. Ultimately, the Second Appeal No.414 of 2001 was dismissed on 15.03.2004 primarily on the technical ground that the Second Appeal ought to be against the judgments and decrees in A.S.No.51 of 1999 as well as A.S.No.52 of 1999 and that the Second Appeal from the judgment in A.S.No.52 of 1999 alone is not maintainable.

5. Thereafter, E.P.No.462 of 2004 was laid by the plaintiff on 28.06.2004. The judgment debtors raised an objection that the execution petition was not maintainable on the ground that the decree was executable within three years under Article 135 of the Limitation Act and whether counted from the date of decree before the trial Court which was 05.04.1999 or counted from the date of decree before the appellate Court which was 26.02.2001, the execution petition was laid beyond three years and that the execution petition consequently is not maintainable. The execution Court held that the execution petition was within time. The objection raised by the defendants was overruled. The execution Court, through the impugned order dated 15.09.2005 in E.P.No.462 of 2004, directed for the removal of the construction. Aggrieved by the same, the defendants preferred C.R.P.No.5057 of 2005. The High Court was pleased to allow the revision. The order in E.P. No.462 of 2002 was set aside. The execution petition was remanded to the execution Court for fresh consideration. Thereafter, the impugned orders were passed by the execution Court. The defendants once again preferred the present revision impugning the orders of the execution Court.

6. The point for consideration is whether the execution petition is within time.

7. O.S.No.548 of 1995 was a suit for mandatory injunction. Under Article 135 of the Limitation Act, the decree in a mandatory injunction suit is liable to be executed within three years. The decree was passed in O.S.No.548 of 1995 on 05.04.1999. A.S.No.51 of 1999 was preferred therefrom before the learned III Additional District Judge, Kurnool. The learned III Additional District Judge, Kurnool dismissed A.S.No.51 of 1999, through the judgment dated 25.02.2001. The judgment in O.S.No.548 of 1995 and the judgment in A.S.No.51 of 1999 indeed are common judgments. O.S.No.283 of 1995 was disposed of along with O.S.No.548 of 1995, through the common judgment dated 05.04.1999. A.S.No.52 of 1999 was disposed of, through the common judgment along with A.S.No.51 of 1999. The second appeal was preferred from the judgment in A.S.No.52 of 1999 only. No second appeal was preferred from the judgement in A.S.No.51 of 1999. These are the admitted facts.

8. When E.P.No.462 of 2004 was laid to execute the degree in O.S.No.548 of 1995, as confirmed in A.S.No.51 of 1999, the defendants resisted the execution petition on the ground that the same is barred by limitation. It may be recalled that O.S.No.548 of 1995 was decreed on 05.04.1999. A.S.No.51 of 1999 was dismissed on 25.02.2001. The execution petition was laid on 28.06.2004. Either from the date of the decree in O.S.No.548 of 1995 which was 15.04.1999 or from the date of the judgment in the appeal in A.S.No.51 of 1999, which was 25.02.2001, three years elapsed by the date of E.P.No.462 of 2004 dated 28.06.2004. Under Article 135 of the Limitation Act, a decree for the execution of a mandatory injunction can be laid within three years only from the date of the decree.

9. Sri Shafath Ahmed Khan, learned counsel for the revision petitioners/judgment debtors would contend that the execution petition is not maintainable as it was filed beyond three years from the date of either the judgment of the trial Court or the judgment of the appellate Court. On the other hand, it is the contention of Sri K. Sriram, learned counsel for the respondent/decree holder that the execution of the decree was stayed in S.A.No.414 of 2001 and that as the second appeal was disposed of on 15.03.2004, the period of limitation shall be reckoned from 15.03.2004 only. His contention is that the period from the date of the decree in O.S.No.548 of 1995 till the disposal of S.A.No.414 of 2001 on 15.03.2001, limitation to lay the execution petition is suspended in view of Section 15 of the Limitation Act.

10. The controversy is only in this regard. According to the learned counsel for the plaintiff/decree holder, when status quo was granted in S.A.No.414 of 2001 on 24.06.2001, the plaintiff could not move the execution petition and that consequently the plaintiff was protected u/s.15 of the Limitation Act. The learned counsel for the defendants/judgment debtors urged that Section 15 of the Limitation Act would not apply for the present case, where S.A.No.414 of 2001 was not from the judgment and decree in A.S.No.51 of 1999 which in turn was from O.S.No.548 of 1995 and that when the plaintiff proposed to execute the decree in O.S.No.548 of 1995 or A.S.No.51 of 1999, there was no stay of the execution of the same. According to him, the date of commencement of limitation for filing the execution petition was 05.04.1991 on which date O.S.No.548 of 1995 was decreed or at the outer most on 25.02.2001 when A.S.No.51 of 1999 arising from judgment in O.S.No.548 of 1995 was dismissed and that in either event, the execution petition laid beyond three years cannot be executed as the same is barred by limitation. Consequently, the real question is whether the stay granted in S.A.No.414 of 2001 operates as stay for the execution of the decrees in O.S.No.548 of1995 and A.S.No.51 of 1999. If the stay in S.A.No.414 of 2001 has no relevance through the judgment and decree in A.S.No.548 of 1995 and A.S.No.51 of 1999, the execution petition laid by the plaintiff in E.P.No.462 of 2004 would be barred by limitation. If the period during which the stay granted in S.A.No.414 of 2001 was in operation is excluded from the computation of the period of limitation, E.P.No.462 of 2004 would be well within time. Hence, the limited question is whether the stay in S.A.No.414 of 2001 would operate as stay of the execution of the decree in O.S.No.548 of 2005.

11. The learned counsel for the defendants pointed out that the status quo granted in S.A.No.414 of 2001 on 24.06.2001 was in relation to A.S.No.52 of 1999 arising from O.S.No.283 of 1995 and that it had nothing to do with the decree in O.S.No.548 of 1995, as confirmed in A.S.No.52 of 1999. He, therefore, contended that so far as the decree in O.S.No.548 of 1995 is concerned, there was no stay at least after the disposal of A.S.No.51 of 1999 on 25.02.2001 and that the plaintiff ought to have preferred execution petition to enforce the decree in O.S.No.548 of 1995 within three years from 25.02.2001 when A.S.No.51 of 1999 was dismissed. The learned counsel for the decree holder/plaintiff contended that indeed the High Court granted status quo in A.S.No.414 of 2001 and that the same, however, would operate as a partial and limited stay for the execution of the decree in O.S.No.548 of 1995 and A.S.No.51 of 1999. He submitted that even a limited stay for the execution would attract Section 15 of the Limitation Act protecting the plaintiff from the rigor of limitation.

12. The learned counsel for the plaintiff placed reliance upon Anandilal v. Ram Narain AIR 1984 SC 1383 in support of his contention. The Supreme Court considered that the word ‘execution’ in Section 15 (1) of the Limitation Act embraces all the appropriate means by which a decree is enforced including all the processes and proceedings in the aid of or supplemental to the execution. The Court pointed out that there was no rationale for adopting a narrow and restricted construction on a beneficent provision like Section 15 of the Limitation Act. Through the liberal interpretation, the Supreme Court held that Section 15 (1) of the Limitation Act protects a decree holder whether the stay granted was a complete and absolute stay or a partial stay. The Court viewed that if stay is granted for the execution of a decree in one of the modes, it shall be treated that the stay is in force protecting the decree holder u/s.15 of the Limitation At, even though, the decree holder is trying to execute the decree through a mode of execution for which there is no stay. This is the point on which the learned counsel for the decree holder is harping upon. It is his claim that where S.A.No.414 of 2001 prevented the decree holder from executing the decree through a status quo order, the plaintiff was protected by Section 15 of the Limitation Act.

13. On the other hand, the contention of the learned counsel for the defendants/judgment debtors is that the stay of the judgment and decree in O.S.No.283 of 1995 and A.S.No.52 of 1999 are not tantamount to stay of the execution of the decree and judgment in O.S.No.548 of 1995, as confirmed in A.S.No.51 of 1999 and that the decision of the Supreme Court in Anandilal’s case (supra) has no relevance for the present circumstances.

14. Sri Shafath Ahmed Khan, learned counsel, while advancing his submissions on behalf of the revision petitioners/defendants/ judgment debtors placed reliance on Mohan v. Munshi 2003 (1) CCC 390 (Raj.) Dr. B.S. Chauhan, J, as he then was considered that mere pendency of an appeal would not permit the decree holder to sleep over the matter and to raise only after the decision of the appeal. He referred to Order 41 Rule 5 C.P.C. and held that an appeal ifso facto would not amount to stay of the execution of the decree.

15. The learned counsel for the respondent/decree holder contended that this decision has no relevance where the second appeal arose from one of the common judgments in the first appeal which in turn arose from a common judgment of the trial Court and that in such an event, the stay of the judgment and decree in O.S.No.283 of 1995 and A.S.No.52 of 1999 would amount to partial stay and would consequently suspend the period of limitation under Section 15 of the Limitation Act in view of Anandilal.

16. To counter this contention of the learned counsel for the decree holder, the learned counsel for the judgment debtors referred to a decision in W.B. Essential Commodities Supply Corpn. V. Swadesh Agro Farming & Storage Pvt. Ltd., (1999) 8 SCC 315 . It was observed by the Supreme Court in that case that a decree holder would not be entitled to the benefit of the exclusion of the time taken for obtaining the certified copy of the decree. The Court held that the limitation period of 12 years under Article 136 of the Limitation Act would commence from the date of pronouncement of the judgment and not even from the date on which the decree was drawn and signed by the Court.

17. It is the contention of the learned counsel for the judgment debtors that where the decree sought to be executed is the decree in O.S.No.548 of 1995 as confirmed in A.S.No.51 of 1999 and where the same was not stayed at any point of time, the period of limitation in fact commenced from the date of the judgment in O.S.No.548 of 1995 and that the period of limitation consequently commenced from 05.04.1999. He also submitted that in the alternative, assuming that as appeal from the judgment and decree in O.S.No.548 of 1995 was pending, the period of limitation commences from the date of the judgment in A.S.No.51 of 1999 and that as A.S.No.51 of 1999 along with A.S.No.52 of 1999 was disposed of on 25.02.2001, the decree holder ought to have taken execution within three years therefrom. Admittedly, where the execution petition was laid on 28.06.2004, it is the case of the learned counsel for the judgment debtor that the execution petition is barred by limitation and is liable to be dismissed.

18. It is the view of the Supreme Court in the last of the cases cited that the period of limitation commenced from the date of judgment which is sought to be executed, so along as there is no stay of the same. It may be pointed out that the decree holder is executing the decree in O.S.No.548 of 1995, perhaps as confirmed in A.S.No.51 of 1999. The decree holder definitely was not executing the common decree in A.S.No.548 of 1995 and O.S.No.283 of 1995. There was no executable decree in O.S.No.283 of 1995 and A.S.No.52 of 1999 nor in S.A.No.414 of 2001. The decree, which could be executed, is the decree in O.S.No.543 of 1995, which stood merge in the decree of the appellate Court in A.S.No.51 of 1999.

19. As the decree in O.S.No.54 of 1995 and A.S.No.551 of 1999 were more than three years prior to the date of the execution petition, the execution petition is clearly barred by limitation. I, therefore, agree with the contention of the learned counsel for the revision petitioners that the execution petition is not maintainable. The execution Court is erroneous in holding that the execution petition was within time. I, therefore, am constrained to set aside the impugned order passed by the execution Court. I hold that the execution petition laid by the decree holder is beyond limitation and is, therefore, liable to be rejected. The execution petition is accordingly rejected.

20. In the result, the Civil Revision Petition is allowed. No costs.