Allowed

Nagubandi Pullaiah v. Maduri Srinivasa Rao

Telangana HC11 Oct 2022CRP/4172/2009

Case brief

AI extract

What is this about?

High Court allowed a civil revision petition setting aside the dismissal of an execution petition. The court held that when a decree grants inseparable reliefs of possession and mandatory injunction with different limitation periods, the larger 12-year limitation applies, preventing the entire execution from being barred due to the shorter 3-year limitation on the ancillary relief.

What did the court decide?

Civil Revision Petition allowed; original order dated 03.08.2009 in E.P. No. 336 of 2008 set aside; execution petition restored for execution within three months.

Nagubandi Pullaiah Vs Maduri Srinivasa Rao — Property and Title | Telangana HC (2022)

¶1

t³²¹⁶¹

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶3

TUESDAY, THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENry TWO

¶4

PRESENT

¶5

THE HONOURABLE SRI JUSTICE M.LAXMAN

¶6

CIVIL REVISION PETITION NO:4172 OF 2009

¶7

Petition under Section 115 of Civil Procedure Code, aggrieved by the Order dated 03.08.2009 in E.P. No. 336 of 2008 in O.S. No. 7S of 1998 on the file of the lll Additional Junior Civil Judge, Khammam. Between:

¶8

Nagubandi Pullaiah, S/o Late Ananta Ramaiah, Agriculture

¶9

Konikimalla Nagendra, Wo Koteswer Rao, Household

¶10

Both C/o. K. Koteswer Rao, 5$-24, Pakabanda bazaar, Khammam District

¶11

Decree Holders/ Plaintiffs

¶12

AND

¶13

Maduri Srinivas Rao (died), Rep. by his L.Rs Respondents 2 to 5

¶14

. - RespondenURespondent

¶15

Maduri Kamalamma Wo Late M. Srinivas Rao, Aged 55 years.

¶16

Maduri Siva @ Samba Siva, s/o. Late Maduri Srinivas Rao, aged 35 years,

¶17

Maduri Ramu s/o. Late Maduri Srinivas Rao, Aged 30years.

¶18

Maduri Krishna s/o. Late Maduri Srinivas Rao, Aged 26 years

¶19

All R/o. H.No. 5-4-7, Opp: Vignan High School, Bonakal Cross Road, Pakabanda Bazar, Khammam District.

¶20

...Respondents/ Proposed Respondents 2 to 5

¶21

CRPMP. NO: 730 OF 2011

¶22

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased direct the respondent

¶23

to deliver possession of the schedule of^property in E.P.No. 336 of 2008ⁱⁿ O.S.No. 706 of 98 on the file of the lll Addl. Junior Civil Judge Court, Khammam to the petitioners who are the decree holders forthwith.

¶24

Counsel for the Petitioners: SRl. HARI SREEDHAR

¶25

Counsel for the Respondents: SRI A. SURYANARAYANA

¶26

The Court made the following: ORDER

¶27

ML,J CRP No.4172 of 2009

¶28

¶29

THE HON'BLE SRI JUSTICE M. LAXMAN

¶30

CIVIL REVISION PETITI ON No. 4L72 of2OO9

¶31

ORDER:

¶32

The present Civil Revision Petition is filed against the order dated 03.08.2009 in E.P. No.336 of 2O08 in O.S. No. 706 of 1998 on the file of III Additional Junior Civil Judge, Khammam, wherein and whereby the execution petition filed by the revision petitioners for enforcement of judgment and decree dated 03.O2.1999, was dismissed.

¶33

This revision is at the instance of decree holders. Rcspondent No.I herein is the judgment debtor. During the pendency of this revision, respondent No.1 died and his legal heirs were brought on record as respondent Nos.2 to 5. The decree holders obtained decree for recovery of possession and mandatory injunction for removal of structures in the E.P. schedule property, apart from granting of damages.

¶34

The Executing Court had dismissed the E.P. on the ground that the execution of the decree for mandatory injunction was barred by limitation and consequently, the Execution^Petition filed for the recover possession was also dismissed.^{Hence, the} present revision.

¶35

ML,J CRP No.4172 of 20O9

¶36

¶37

The learned counsel for the revision petitioners^has submitted that the Executing Court has not properly appreciated the reliefs which are sought in execution. According to him, the decree was consisting of retiefs of mandatory injunction as well as the recovery of possession. For enforcement of mandatory injunction, the limitation prescribed under Article 135 of the Limitation Act is only 3 years, whereas for other decrees, the limitation pf€seribed under Aiticle 136 of Limitation Act is L2 years. For the reliel of recovcry of posscssioi-t, thc limitation prescribed is 12 years; whercas for mandatory injunction, it is 3 years. Both the reliefs are inseparable and.intertwined and the main relief ol- recovery ol possession is not independently executable.

¶38

On the other harrd, learned Counsel for the respondents has submitted that the Exccuting Court has rightly dismissed the petition on the ground that the relief of mandatory injunction cannot be executed beyond the 3 years from the date of decree rvhen there is no stipulation of date lor performance According to him, before handing over of vacant possession, the decree-holder should obtain decree for demolition of structures by executing decree for mandatory injunction, which is not done

¶39

)

¶40

ML,J CRP No.4172 of^2O09

¶41

in the present case. Therefore, the Court below has rightly dismissed the application and requires no interference.

¶42

In the light of the above submissions, it is apt to refer

¶43

Articles 135 & 136 of Limitation Act, which read as under:

¶44

Art. No.	Descriptionofsuit	Periodof limitation	Timefromwhich periodbeginsto run
135	Fortheenforcement ofadecreegranting a mandatory injunction.	Three years	Thedateofthe decreeorwherea dateiffrxed^for performance,such date.
136	Fortheexecutionof anydecree(other than a decree granting a mandatory injunction)ororder qf anyCivil Court	Ttrzelve years	(When)thedecree ororderbecomes enforceable^or wherethedecreeor any subsequent orderdirectsartY paymentofmoneY orthedelivery^of anypropertyto^be madeatacertain dateoratrecurring periods, when defaultin^making thepayment^or deliveryin^respect ofwhich^execution issought,^takes place. Providedthat^an applicationfor^the enforcement^or executionof a decreegranting^a perpetual injunctionshall^not besubjectto^any periodoflimitation.

¶45

6 I.IL,J CRP Nc.4 172 of 2009

¶46

A readrng of Artick: 135 shor,vs that ior enforcement of decree of nrandatory injunction, three 1'ears iimitation is contemplated. That three 1,ears limitation commences from the date of decree where no time is fixed for performance and if the time is fixed from the date of fixed time, the limitation commences.

¶47

Insofar as Article 136 is concerned, it is a residuary provision for other decreeg olher thal maldatory injunction and the time stiprrlation is 12 1,ears. The limitation comnlences when decree or ordcr is cn(brceable. Hor,/e./er, u,hen time is contemplated lbr payment ol money, delivery ol any property on any particular date or where recurring periods are contemplated when the default in making the paymcnt or dr,'livcry in respect of which execution is sought, is the starting point

¶48

In the Dresent case, the decree granted was for comprehensive. That means. it included mandatory injunction as well as the recovery of vacant possession. For executing the larger relief of recovery of vacant possession, the relief of IS mandatory injunction necessarily to be executed. If mandatory injunction cannot be executed, the main relief which is granted for recovery of vacant possession becomes lutile and

¶49

ML,J CRP No.4172 of 2009

¶50

¶51

inexecutable. For the main relief, the limitation contemplated is twelve years, whereas the relief of mandatory injunction was only three years. When the relief granted covers two distinct limitations, the larger limitation contemplated for the relief has to be taken into consideration while determining whether the execution petition was within time or not. Further, when the two reliefs granted in the decree, if they are inseparable, the larger time prescribed has to be taken.

¶52

A similar question arose belore the High Court of Bombay (Aurangabad Bench) in case of Ramdas Shriram Chaudhari Vs. Guna Kondu Dhanger & othersr wherein it was held at pa,ra

¶53

No.12 as follows:

¶54

"The execution of the decree should not be made futile on mere technicalities which does not, however, mean that where a decree is incapable of being executed under any provisions of law it should, in all cases, be executed not-with-standing such bar or prohibition. However, if a decree is granted for two reliefs and the second relief is contingent upon the hrst, a rational approach is necessitated keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a iitigant. The policy of law is to give a fair and liberal and not a technical construction enabling the decree holder to reap the fruits of his decree. In short, when the decree is passed in respect of two reliefs for which different period of limitation is prescribed and if the second relief is separable from the first relief, then in that case the bar of limitation for enforcing that part of the decree will come in the way of the decree holder. For example, if the decree is for possession and compensation and if the decree for recovery of the

¶55

'zoo+ lzy^{ALL MR sr8}

¶56

ML,. CRP No-4172 of 2009

¶57

¶58

amouni of compensation is not enforced within the prescril)ed time limits, then enforcement of thc said part of the decree would be barred by limitation. However, if the second part of the decree is inseparable from the first part of the decree i.e. if the second reliel is inseparable from the first relief as in the present case of recover)' of possession coupled with the mandatory injunction to demolish the house then the period of limitation for enforcement of the main relief should be treated lor enforcement of such type of decree by giving fair and liberal and not technical construction to enable the decree holder to reap the fruits of his decree."

¶59

The Apex Court in Sopanrao and Others Verses Syed

¶60

Mehmood & Othersz had also an occasion to consider the limitation aspect when two inseperable reliefs are sought in a suit i.e., one relief is shorter duration and the other relief is larger duration and held that tl-re larger limitation prescribed has to be taken into consideration to decide rvhether the suit is within time or not. The reler.ant para reads as undcr:

¶61

"9. It was next contcnded by thc learned counsel that the suit was not Iiled within limitation. This obiection is totally unlenable. Admittedly, the possession of the land was handt:d over to the Trust only in the year 1978. The suit was filed in the year i987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main pral'ers made in the suit hereinabove which clearly indrcate that it is a suit not only lor declaration but the plnintiffs also prayed for possession of the suit lald. The limitation for liling a suit for possession on the basis of title is 12 years and, therefore, the suit is within iimitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitati on of 72 years is lost. In a suit filed for possession based on title the plaintiff is bound to prove

¶62

'uaxu lscloezzlzote'

¶63

¶64

ML,J CRP No.4172 of 2OO9

¶65

his title and pray for a dcclaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main reli€f is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable propert5r or any interest therein based on title arr,d the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants".

¶66

A reading of the above ratios laid down by the Mumbai High Court as well as the Apex Court, it is clear that when the reliefs sought are inseparable and have two distinct limitations,^{</sup> the limitation prescribed for larger relief is the {oundation todecide whether the suit or execution petition is within time or not. Merely because one relief sought is barred by limitation, the other larger relief which is still within time cannot be said to be barred by limitation. [f such contention is accepted, the main relief granted would be unexecutable even though it is within limitation for the sirnple reason that the ancillary relief which is granted in aid of main reliel is barred by limitation. Therefore, I hold that the Court below has committed error in dismissing the execution petition as barred by limitation.^{Such finding requires} interlerence.}

¶67

ML,J CRP No.4l 72 of 2009

¶68

¶69

Accordingly, the Civil Revision Petition is allowed by setting aside order dated 03.08.2O09 passed in E.P. No.336 of 2008 in O.S. No. 706 <f 1998 by the ill Additional Junior Civil Judge, Khammam. Clonsequently, the execution petition is restored. The Executing Court shall proceed with the execution as early as possible, prefe^-ably within a period of three months from the date of receipt of copy of this Order. No order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.

¶70

SD/- G.SIREESHA ASSISTANT"REGISTRAR //TRUE COPY// [^. \r'. \ SECTION OFFICER

¶71

One Fair Ccpy to the Hon'ble Sri iusiice fifi. LAXMAN (For His Lordships Kind Perusal)

¶72

To,

¶73

The lll Additional Junior Civil Judge, Khammam.

¶74

One CC to Sri Hari Sreedhar, Advocate [OPUC]

¶75

One CC to Sri A. Suryanarayana, Advocate [OPUC]

¶76

11 LR Copies

¶77

The Under Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi

¶78

The Secretary, Advocates Association.(TG) Library, High Court Buildings, Hyderabad.

¶79

The Secretary, Advocates Association (AP) Library, High Court Buildings, Hyderabad.

¶80

Two CD Copies

¶81

One Spare Copy

GJ "$/-

HIGH COURT

DATED:1111012022

rrElrrEEl vI\IJLI\

CRP.No.4172 or 2009

f.
'(
i'\
q'
I
t, I
c *.
I 2 1 JAir ?0,,?3
or/'
rl: Seci
.='ir-:J -

¶88

ALLOWING THE CRP

¶89

WITHOUT COS]-S

¶90

j2,'

Nagubandi Pullaiah v. Maduri Srinivasa Rao

Case brief

What is this about?

What did the court decide?

Nagubandi Pullaiah v. Maduri Srinivasa Rao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dt.Collector Mhabubnagar Vs R.Ramakrishna Reddy

Miss P.Suhar Latha Vs Sri Robert W Long

Sri Ramesh Gandhi Vs Smt. R. Swathi

Nannapaneni Rama Rao Vs Smt. Nannapaneni Soubhagyamma

Abdul Khadar Vs Secretary to Govt. of A.P.

M/s. Electrotech Devises Vs Syndicate Bank