Dismissed

M/S Milap Roadways Transport Contractors etc. v. Improvement Trust, Ludhiana.

Punjab & Haryana HC17 Apr 2009CR/19/2009

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging the dismissal of an execution application as time-barred. The court held that the trial court's direction to allot a plot of land was a mandatory injunction, not a perpetual injunction, making the execution application time-barred under Article 135 of the Limitation Act.

What did the court decide?

Civil Revision No. 19 of 2009 dismissed.

M/S Milap Roadways Transport Contractors… — Execution and Attachment | Punjab & Haryana HC (2009)

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CR No. 19 of 2009 [ 1}

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 19 of 2009 (O&M) Date of decision: 17.4.2009

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M/s Milap Roadways Transport Contractors and Fleet Owner and another

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.. Petitioners

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Improvement Trust, Ludhiana.

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.. Respondent

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. M. L. Saggar, Senior Advocate with Ms. Taranjeet Kaur, Advocate for the petitioners.

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Rajesh Bindal J.

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The petitioners have approached this Court challenging the order dated 6.10.2008, passed by the learned court below, whereby the application filed by the petitioners on 22.7.2006 for execution of decree dated 8.8.1986, passed in their favour, was dismissed as time barred.

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Briefly, the facts are that the petitioners filed a suit praying for grant of perpetual injunction restraining the respondent-Trust from auctioning/allotment or alienating in any manner plot No. 40/72, measuring 500 square yards, situated at Transport Nagar bye-pass, Samrala Road, Ludhiana. The suit was decreed on 8.8.1986. The learned trial court granted permanent injunction in favour of the petitioners-plaintiffs restraining the respondent-Trust from auctioning plot No. 40/72 to any one else. Further, the respondent-Trust was directed to allot the aforesaid plot to the petitioners-plaintiffs or in the alternative any other plot at original price of Rs. 100/- per square yard without payment of any penalty or interest and by paying the remaining amount in instalments. It is the execution of the aforesaid decree, which was sought by the petitioners by filing application on 22.7.2006, which was dismissed by the learned court below, considering the same to be time barred.

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Learned counsel for the petitioners submitted that the petitionersplaintiffs had approached the trial court for grant of relief of perpetual injunction. The learned trial court vide judgment and decree dated 8.8.1986 decreed the suit granting permanent injunction in favour of the petitioners-plaintiffs and further directing the respondent-Trust to allot the plot to the petitioners-plaintiffs. In terms of the provisions of Article 136 of the Limitation Act, 1963 (for short, `the

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CR No. 19 of 2009 [ 2}

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Limitation Act') for execution of a decree of perpetual injunction, there is no limitation. Accordingly, the learned court below had gone wrong in dismissing the execution application filed by the petitioners-plaintiffs treating the same to be time barred. It was further submitted that the terms “mandatory injunction” and “perpetual injunction” are synonymous. Reliance was placed upon Ram Singh and others v. Salig Ram and others, AIR 1975 Allahabad 11 and Indradeo Sah v. Ram Naresh Sah and others, 2002(2) Indian Civil Cases 391 to submit that there is no limitation for execution of a decree for perpetual injunction.

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After hearing learned counsel for the petitioners, I do not find any merit in the submissions made. It is a case where the petitioners-plaintiffs had applied for allotment of a plot in Transport Nagar, Ludhiana way back in 1973-74. As is noticed in judgment dated 8.8.1986, after the petitioners-plaintiffs were informed of allotment of plot, they deposited a sum of Rs. 500/-. Allotment letter was issued on 12.1.1974. The total consideration money for the plot was Rs. 50,000/-. However, the petitioners-plaintiffs did not deposit the balance consideration. All what was claimed is that in 1983, Rs. 24,000/- were sought to be deposited by the petitioners, but the same were not accepted. However, still considering the material on record, the trial court decreed the suit filed by the petitioners-plaintiffs granting permanent injunction and also directing the respondent-Trust to allot the plot in favour of the petitioners. The relevant part of the decree is extracted below:

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“... it is ordered that the suit of the plaintiff is decreed and a decree for permanent injunction is passed in favour of the plaintiffs and against the defendant restraining the defendant not to auction plot No. 40/72, to any body else and the defendant is directed to allot this plot to the plaintiff or in the alternative, the defendant trust can give some other plot to the plaintiff and the plaintiff is entitled to have the plot at the original price of Rs. 100/- per square yard without payment of any penalty and interest and by paying the remaining amount in instalments. Parties are left to bear their own costs.”

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It is the aforesaid decree passed in favour of the petitionersplaintiffs on 8.8.1986, the execution of which was sought on 22.7.2006, i.e., about 20 years after the passing of the decree.

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The contention of learned counsel for the petitioners that it is a decree of permanent/perpetual injunction is totally misconceived. Rather, a perusal of the judgment and decree passed in favour of the petitioners shows that the only relief, which was sought by the petitioners, was for perpetual injunction

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CR No. 19 of 2009 [ 3}

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restraining the respondent-Trust from allotting the plot in question to any one else. However, the learned trial court deemed it appropriate to grant further relief to the petitioner by directing the respondent-Trust to allot the plot in question to the petitioners or in the alternative some other plot at the same rate. Though the decree was passed on 8.8.1986, the petitioners did not deposit any amount with the respondent-Trust, execution application was filed on 22.7.2006 seeking to enforce the direction issued by the trial court in favour of the petitioners for allotment of a plot @ Rs. 100/- per square yard.

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Section 38 of the Specific Relief Act, 1963 (for short, `the Specific Relief Act') provides as to when a perpetual injunction can be granted. In terms thereof, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. It further provides that when such an obligation arises from the contract, the Court shall be guided by the rules and provisions contained in Chapter II and where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant perpetual injunction. Section 39 provides that the Court can grant mandatory injunction to prevent breach of an obligation when it is necessary to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts. The relevant provisions of the Specific Relief Act are extracted below:

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“ 38. Perpetual injunction when granted.- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

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(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, the court may grant a perpetual injunction in the following cases, namely:-

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(a) where the defendant is trustee of the property for the plaintiff;

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(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

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(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

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xx xx xx

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CR No. 19 of 2009

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39. Mandatory injunctions.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.”

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Article 135 of the Limitation Act provides limitation of 3 years for enforcement of a decree granting a mandatory injunction. For execution of any decree other than a decree granting mandatory injunction or order of any Civil Court, the period of limitation is provided as 12 years. However, proviso thereto provides that there is no limitation for execution of a decree granting perpetual injunction. The relevant provisions of the Limitation Act are extracted below:

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“	Description of application	Period of limitation	Time from which period begins to run
.......... 135.	............................................... For the enforcement of a decree granting a mandatory injunction.	....................... Three years	.................................................... The date of the decree or where a date is fixed for performance, such date.
136.	For the executions of any decree (other than a decree granting a mandatory injunction) or order of any civil court.	Twelve years	When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.”

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A bare perusal of the provisions of the Specific Relief Act shows that perpetual/permanent injunction can be granted when there is threat to the plaintiff to invasion of his right to, or enjoyment of property so as to prevent the same. However, mandatory injunction is granted to compel the performance of certain acts. In the present case, the suit was filed by the petitioners-plaintiffs for grant of perpetual/permanent injunction only for restraining the respondent-Trust from allotting the plot in question to any one else. However, the learned trial court while decreeing the suit further directed the respondent-Trust to allot the plot in question or any other plot to the petitioners-plaintiffs, which cannot be said to be in any

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CR No. 19 of 2009 [ 5}

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manner a direction or decree in the nature of perpetual/permanent injunction. The limitation for execution of a decree for mandatory injunction is 3 years. For execution of any other decree other than mandatory injunction, the period of limitation prescribed is 12 years. There is no limitation only for execution of a decree granting perpetual injunction. Once it is found that the direction of the Court, which is sought to be executed by the petitioners-plaintiffs by filing application nearly 20 years after the passing of the decree, does not fall within the scope of perpetual/permanent injunction, the plea raised by the petitionersplaintiffs that there is no limitation for execution thereof cannot be sustained.

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Accordingly, the present petition is dismissed.

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(Rajesh Bindal) Judge

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17.4.2009 mk

M/S Milap Roadways Transport Contractors etc. v. Improvement Trust, Ludhiana.

Case brief

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M/S Milap Roadways Transport Contractors etc. v. Improvement Trust, Ludhiana.

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