ORDER
Dharmpal Sinha, J.
1. In this civil revision the order dated 26-4-1985 passed by Sri T.L. Verma, 6th Additional District Judge, Patna, passed in Miscellaneous Appeal Nos. 114 of 1981/22 of 1983 has been assailed. That miscellaneous appeal arose out of an Execution Case No. 4 of 1980 and the order seems to have been passed in the following back ground :
The petitioners in this revision claim to have acquired right, title and interest in the property to which the suit related by virtue of purchase from one Banarsilal Bagla (opposite party No. 5), whose mother had instituted a Title Suit Nos. 8/17 of 1963/66 against opposite party No. 6, Sardar Daleep Singh and the suit had been decreed. That decree was put in execution by Banarsilal Bagla in Execution Case No. 4 of 1980. The opposite party 1st set in this civil revision, who claimed to have purchased the interest of opposite party No. 6, objected to the execution of the decree by filing objection under Section 47 read with Section 151 of the Code of Civil Procedure and the main ground of objection was that the execution petition was barred by the law of limitation. The learned Execution Munsif dismissed the objection by order dated 14-2-1981. Against that order dated 14-2-1981 the objectors preferred appeal, which has been disposed of by the impugned order dated 26-4-1985. Learned appellate Court has come to the finding that the execution petition was barred by limitation.
2. Broadly two reasons appear to have been given by the learned appellate Court for taking the view that the execution petition was barred by limitation. First is that since the decree in the suit had been passed on 18th of March, 1967, which is the date of the judgment passed in the title suit and the execution petition was filed in the year 1980, and by that time 12 years had expired, the execution petition was barred by the law of limitation. The second reason for taking the view was based on the interpretation of the decree, and the learned appellate Court took the view that since the decree was in the form of mandatory injunction and not in the form of perpetual injunction, it was clearly barred by the law of limitation and Article 136 of the Limitation Act on which reliance was placed by these appellants would not apply to that execution case.
3. First reason given by the learned appellate Court is absolutely misconceived in law in view of the Full Bench decision reported in 1987 Pat LJR 172 : (AIR 1987 Patna 133) (Jokhan Rai v. Baikunth Singh). It is admitted position that after the judgment and decree dated 18-3-1967 passed in the aforesaid title suit by the trial Court, opposite party No. 6 had filed Title Appeal No. 45 of 1967 before the learned District Judge, Patna and the appeal was dismissed by order dated 14-5-1970, for default. It further appears that thereafter petition for re-admission of the appeal bearing Misc. Case No. 8 of 1970 was filed on 8-6-1970, which also stood dismissed for default on 13-11-1971, whereafter Miscellaneous Appeal 12 of 1971 was filed before this Court and the same was dismissed by order dated 18-10-1973. Since the execution case has been filed within 12 years even from the date of dismissal of first appeal on 14-5-1970, the appellate Court certainly took a wrong view in coming to the finding that it was filed beyond 12 years period. It is conceded by the learned counsel for both the sides that in view of the Full Bench decision the learned appellate Court went wrong in computing the period of limitation from the date of decree of the trial Court; for it is now settled that the period of limitation has to be computed from the date of the final disposal of the appeal (which in this case opposite party No. 6 had preferred against the decree of the trial Court). The fact, that no stay of execution of the decree had been granted, referred by the appellate Court is not relevant, though the learned appellate Court has erroneously taken this aspect into consideration.
4. As regards the second ground, it may be noticed here that the operative portion of the decree, that was sought to be executed, reads as follows:
“that the suit and the same is decreed, on contest, with cost against the defendant. The latter is directed to close the door in question within one month from the date of the decree, failing which the plaintiff would be entitled to get it closed through the process of the Court.”
The submission of the learned counsel for the petitioners is that the suit had been brought for declaration to the effect that the defendant had no right to fix up a door in the western wall, which was held to belong to the plaintiff and there was further prayer for closing the door, and the learned trial Court after considering the pleading and evidence of the parties had come to the conclusion that plot No. 429, which had been claimed by the plaintiff belonged to her (who was then the mother of opposite party No. 5) and she had got title over the disputed wall in which the door had been opened in the year 1982, and that the defendant, whose premises stood adjoining west, had no authority and no title over it. The contention of the learned counsel for the petitioners is that since the finding about title of the predecessor-in-interest of the petitioners had been given regarding the wall and the land in question, and then the suit was decreed and further specific order was given for closing the door, which had been opened in the wall, it must be held that the plaintiff, whose successor-in-interest are the petitioners have got title over the wall and any opening of the door in future in that wall should be deemed to have been prohibited. According to his submission the door which had existed at that time has been closed by the judgment-debtor and so at that time there was no necessity of instituting an execution case for getting the door closed relating to which specific direction had been given in the decree; but since title of the plaintiff had been declared over the wall any subsequent attempt to open a new door requires in the interest of the justice, to be stopped in execution of the same decree by which the title of the predeccssor-in-interest over the wall has been declared. His contention is that in the facts and circumstances of the case and particularly in view of the finding of the Court about title over the concerned wall, provision of Article 136 of the Limitation Act, 1963 is applicable.
5. On the other hand, learned counsel for the contesting opposite parties, who were objectors in the execution case, has submitted that the decree as it stands can be only interpreted to be a decree for mandatory injunction and the declaratory part of the decree, whereby the title of the predecessor-in-interest of the petitioners had been declared is not executable or enforceable. The period of limitation as prescribed under Article 135 of the Limitation Act, according to his submission, would be applicable, which is only three years from the date of the decree.
6. Another contention of the learned counsel for the opposite party is that a title suit bearing No. 113 of 1980 had been instituted by Banarsilal Bagla through whom the petitioners claim to have derived title later (a copy of the plaint of which has been brought on the record as Annexure-A of the affidavit filed on behalf of the opposite parties Nos. 1 to 4) and in that title suit cause of action was shown to be opening of the door in the western wall and a relief had been sought that the opposite party had no right, title and interest in the western wall nor had they right to open any door in the western wall or to damage or demolish any portion of that wall and so even the predecessor-in-interest of the petitioners had taken the alleged new opening of the door as fresh cause of action for the suit and there was no question, therefore, of maintaining execution case relating to a decree, in which there could be order regarding this fresh cause of action of opening of a new door. According to the submission, the petitioners had intervened in the suit by filing a petition and eventually the suit was dismissed for default. So, the learned appellate Court has taken, according to his submission, right view in dismissing the execution petition and holding that provision of Article 136 of the Limitation Act was not applicable.
7. In reply to the contention, the learned counsel for the petitioners has submitted that the filing of the later suit (No. 113 of 1980) was ill-advised and when correct advise was given that relief sought in that suit could be obtained in the execution case itself, which was then pending, that suit was not pursued and ultimately it was dismissed for default.
8. I have carefully considered the contentions of the learned counsel for both the parties. In my considered opinion, the impugned order dated 26-4-1985 requires no interference, as in passing the impugned order, there does not seem to be any jurisdictional error committed nor was there any material irregularity. The reasons for taking this view may be stated as follows:
In the execution case the decree passed in
Title Suit Nos. 8/17 of 1963/66 was sought to
be executed.
The operative portion of the decree (already been quoted above) shows that the suit was decreed and the specific direction was to close the door in question within one month from the date of the decree. To be sure from a perusal of the whole of the judgment on which the decree is based, it would appear that there was a finding in favour of the plaintiff therein, Smt. Parwati Devi, mother of vendor of the petitioners, that she had title over plot No. 429 including the wall in question and the allegation made by her about opening the door on 21-12-82 by the defendant in the suit was held to be correct. But this declaration of title in favour of the plaintiff relating to the adjacent land of plot No. 429 including the wall in which the door was said to have been opened at that time did not constitute such part of the decree as could be put in execution. No doubt, on the basis of the finding, the relief of perpetual injunction restraining the defendant from demolishing the wall in suit, over which the title of the plaintiff had been declared could be given. But that relief does not seem to have been given in that suit and the decree only directed the defendant to close the then existing door in the wall within one month. Learned counsel for the opposite parties seems to be right in submitting that this positive direction was in the nature of mandatory injunction and for execution of such a decree granting mandatory injunction only three years’ period of limitation has been prescribed under Article 135 of the Limitation Act, which is applicable to the facts of the instant case.
9. The submission of the leaned counsel for the petitioners that provision of Article 136 of the Limitation Act prescribing 12 years’ period of limitation for execution of the decree, in my opinion, cannot be accepted. Article 136 prescribes 12 years’ limitation for the execution of any decree (except a decree for perpetual injunction for which there is no period of limitation under the last proviso) other than a decree granting mandatory injunction or order of any civil Court, and the last column lays down the time from which period begins to run, mentioning “when the decree or order becomes enforceable.” The decree in execution in the case in hand become enforceable, so far as direction to clear the door was concerned, after one month from the date of passing of the decree; but the other part that the suit be decreed even if it was decreed with a finding that the plaintiff had title over the wall in question, that declaratory part definitely could not become enforceable, and as noticed above, no perpetual injunction was granted by the decree despite the aforesaid finding of declaration to the effect that the plaintiff had title over the wall in question.
10. In view of the aforesaid reason it is not legally correct to say that as the execution had been levied within 12 years from the date of the order of the appellate Court in that title appeal and so it was not barred by the law of limitation. Accordingly I hold that the impugned order dated 26-4-1985 passed by the 6th Additional District Judge in Miscellaneous Appeal Nos. 114/22 of 1981/1983 requires no interference in exercise of revisional jurisdiction.
11. One observation which needs to be made here: In view of the contentions raised with regard to the Title Suit No. 113 of 1980, which had been instituted by opposite party No. 5 in which the petitioners had also intervened by filing a petition under Order I, Rule 10/Order XXII, Rule 10 of the Code of the Civil Procedure, it will remain open to the petitioners to institute a fresh suit, if they are so advised, for seeking appropriate relief in regard to the alleged fresh opening of the door and while filing the suit they may file petition under Section 5 of the Limitation Act for condoning the delay, if any, on the ground that they had been pursuing bona fide another proceeding in which they had been hopeful to get the relief.
12. This Civil Revision Petition is, accordingly, dismissed with the aforesaid observation.