This court dismissed a writ petition challenging the execution court's dismissal of an application for possession and removal of encroachment. The executing court found no evidence of unauthorized construction and held the possession application time-barred under the Limitation Act. The High Court found no error in this decision.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 20421/2017
----Petitioners
Versus
----Respondents
(2 of 3)
[CW-20421/2017]
For Petitioner(s)
Mr. RDS Naruka
:
HON'BLE MR. JUSTICE ALOK SHARMA
Judgment
15/03/2018
Heard counsel for the petitioner-applicant-decree holder (hereafter ‘the applicant-decree holder’) and perused the impugned order dated 10.10.2017 whereby trial court dismissed the applicant-decree holder’s application under Order 21 Rule 32 CPC.
The facts of the case are that a decree for permanent as also mandatory injunction was passed in a suit at the instance of the applicant-decree holder on 25.11.1999. Thereunder, the defendant-non applicant-judgment debtor (hereafter ‘the non applicant - judgment debtor’) was restrained from making any construction on the disputed property or from alienating or transferring it to a third party. Besides, by a decree of mandatory injunction, possession of two rooms in the suit property facing west was directed to be handed over to the applicant-decree holder by the non applicant-judgment debtor.
An execution application came to be filed on 15.7.2017 by the applicant-decree holder qua the decree dated 25.11.1999 seeking possession of two rooms facing west as also removal of the constructions / encroachment allegedly made by the non applicant-judgment debtor contrary to the judgment and decree of the trial court passed on 25.11.1999.
(3 of 3)
[CW-20421/2017]
As far as unauthorized constructions / encroachment attributable to the judgment debtor is concerned, the executing court found that in support of the application under Order 21 Rule 32 CPC, no evidence with regard to the alleged construction / encroachment was laid by the applicant-decree holder. Further, the report of the Court Nazir indicated that no construction had been made. On the issue of possession on the basis of decree dated 25.11.1999, the executing court held that the said application filed on 15.7.2017 was ex-facie beyond the limitation provided for its execution under Article 135 of the Limitation Act.
The order of executing court on the fact of absence of any unauthorized construction / encroachment by the non applicant-judgment debtor is founded inter-alia upon the report of Court Nazir as also the failure of the applicant-decree holder to bring any evidence with regard thereto on record. On the issue of possession sought under the decree dated 25.11.1999, the executing court’s order is based upon the fact that the applicantdecree holder’s application filed on 15.7.2017 was hit by Article 135 of the Limitation Act which provides for such application to be filed within 3 years of the decree of the court .
In the facts obtaining, I find no force in this petition. It is accordingly dismissed.
(ALOK SHARMA),J
DK
3 issues framed by the court
Whether an execution application for possession and removal of unauthorized construction is barred when the decree holder failed to prove encroachment and the application is limited in time.
Whether the executing court correctly applied Article 135 of the Limitation Act to dismiss the application for possession of rooms in suit property.
Whether the lack of evidence regarding unauthorized construction invalidated the application under Order 21 Rule 32 CPC.
2 provisions across 2 enactments
Sukhdev Prasad S/o Late Surja
Bhanwarlal S/o Late Surja
Anandilal S/o Late Surja
Ramchandra S/o Late Surja
Bhagwana Ram S/o Late Surja
Santra D/o Late Surja
ALOK SHARMA
As recorded by the court registry
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