MEENAKSHI SUNDARESWARAR Vs. CHELLAPPAPERUMAL PILLAI

JUDGEMENT

(1.) THE decree-holder is the petitioner herein. This revision is directed against the order passed in E.P.No.149 of 1979 in O.S.No.22 of 1963. THE decree-holder/ plaintiff filed E.P.No.149 of 1979 under O.21, Rule 32, C.P.C., to direct the first defendant in O.S.No.22 of 1963 to obey the decree of permanent injunction as per Clause (1) of the decree, granted by the High Court in A.S.No.454 of 1955 and on failure to obey to commit him to prison. Under Clause (1) of the decree passed in A.S.No.454of 1955 by this Court against the judgment and decree in O.S.No.22 of 1963 the respondent/ defendants 1 and 2 and their men, were restrained by means of a permanent injunction from interferring with the possession and enjoyment of melmadam Vaidyanathasamy temple with its appurtenant. THE 1st defendant filed a counter stating that he is a hereditary poojari of the said temple. According to him he is in continuous possession of the temple and he is performing the pooja to the deity. He further submitted that the execution petition filed by the decree-holder is barred by limitation. On considering the facts, arising in this case, the execution court dismissed the execution petition filed by the decree-holder. It is against that order, the present revision has been preferred by the decree-holder.

(2.) LEARNED counsel appearing for the petitioner/ decree-holder submitted as under: It is not correct on the part of the execution court to say that the decree of the High Court in A.S.No.454 of 1955 is not enforceable and the execution petition is not maintainable. Though the suit was originally dismissed by the sub-court on appeal in A.S.No.454 of 1955 it was held that the temple belongs to the petitioner herein and it was also held to be in the possession of the petition. The respondent herein made an admission before the High Court that they are not in possession of the said temple and that the property was not in their occupation. It is not correct on the part of the lower court to say that the portion under the occupation of the respondent is not clearly demarcated. The execution petition was filed on 15.12.1978 on the basis that the 1st respondent and his wife are residing there and since they have violated the injunction order and since they are also not performing the pooja the temple is entitled to be put back into the possession, and on failure, the respondent is liable to be commuted to civil prison. The respondent has no consistent case and that the case is governed by the proviso to Art. 136 of the Limitation Act which provides that an apprehension of the enforcement of a decree granting a perpetual injunction shall not be subjected to any period of limitation. Though this article was specifically referred to and the entire arguments were based on the basis of the article itself, it was not considered at all. The respondent's only objection was that the execution petition was barred by limitation since it was filed after 20 years ignoring the specific terms of Art. 136 of the Limitation Act. Art.136 of the Limitation Act has substituted the old Art.8 which provides for shorter period and it specifically excludes or provides the decree for perpetual injunction will not be subject to any period of limitation and it can be enforced at any time without any time limit. The suit is not for recovery of possession but an application filed under O.21, R.32, C.P.C. for restoring the possession and it is in accordance with the decree of the High Court in A.S.No.454 of 1955, where this Court found that the respondent himself had admitted that he had no title or possession. The decision relied on by the court below has no application after the amendment of Limitation Act and to a case where the Proviso to Art. 136 of the Limitation Act clearly applies. In paragraph 6 of the affidavit the respondent has slated that he have been in enjoyment of the temple from the date of the dismissal of the suit, viz., 27.1.1955 which is clearly untenable and contrary to the findings of the High Court, where he had himself admitted that he has no possession or title. In paragraph 4 the respondent says that he is the Poojari. But earlier he said that he is not the Poojari of the said temple and one Arumugam Pillai was the Poojari of the temple. Thus the respondent has no consistent case. In such circumstances the lower court was not correct in stating that no reply has been filed on behalf of the petitioner herein. For all these reasons, it was submitted that the order passed by the lower court is unsustainable.

(3.) THE respondent next contended that the execution petition is barred by limitation. In cases where prohibitory injunction was granted and which was disobeyed the decree-holder will have a right to execute the decree within the prescribed period of limitation from the date of the decree. Ex.A-1, dated 31.3.1959. THErefore according to the respondent within a period of three years from 31.7.1959 i.e. 31.7.1962, the decree-holder's right to file the execution petition has come to an end since the present execution petition was filed only in the year 1979. It was pointed out that since the decree was passed on 31.7.1959, the old Law of Limitation i.e. Limitation Act, 1908 alone will be applicable and the period of limitation will be only three years. However, learned counsel appearing for the petitioner pointed out that as per the new Limitation Act, 1963, under Art. 136 no limitation period is prescribed for executing the decree for permanent injunction even though the period of limitation is only three years as per the Limitation Act, 1908. According to the petitioner the execution arises only when the respondent attempted to interfere with the possession of the petitioner. In support of this contention, learned counsel appearing for the petitioner relied upon the following decisions viz., Bangali Mal v. Gangaram Asharafi Lal,A.I.R. 1923 All. 465, Bohray Jugul Kishore v. Emperor, A.I.R. 1928 All. 300. THE above two decisions relate to the earlier Limitation Act. THE new law of Limitation came into force from 1.1.1964. On the date of filing of the execution petition three years period as contemplated under Art. 182 of the Limitation Act, 1908 has expired. Sec.31 of the Limitation Act, 1963 gives time limit of five years to file an execution petition after the expiry of the period of three years given by the old Act. In the present case, the execution petition was filed long after the expiry of three years as contemplated by the old Act of Limitation, 1908. THE execution petition was not filed within five years as contemplated under Sec.31 of the Limitation Act, 1963. While considering Sec.30 of the Limitation Act, 1963, this Court in the case of Baby Animal v. K.N.Ranababu and others, (1072)1 M.L.J. 194, held as under: "Where the period of limitation prescribed under the Limitation Act of 1963 for a suit is shorter than that prescribed under the Act of 1908, then Sec.30 of the former Act has to be applied. Where, however, the period prescribed for a suit under Art. 120 of the Limitation Act of 1908 had expired even prior to the filing of the suit the plaintiff cannot invoke Sec.30 of the Limitation Act of 1963 and say that the suit has been filed within the time permitted therein after the commencement of the Act of 1963." So also while considering the provisions of Sec.31 and Art. 136 of the Limitation Act, 1963, this Court in the case of Dhanalakshmi Animal v.C.N.Ramaswamy Pillai, (1973)1 M.L.J. 399, held as under: "THE execution petition was filed beyond 12 years from the date of the decree and it is not permissible to tack on the time taken for prosecuting the previous execution petition. Under the former Limitation Act, lime is taken to run from the date of the order passed in the last execution petition for the purpose of Art.182 of that Act. But under the provisions of the Limitation Act, 1963 time begins to run only from the date of the decree and when execution petition is not filed within 12 years therefrom it clearly gets barred." THErefore, the new Limitation Act, 1963 would not render any assistance to the petitioner to say that the execution petition is not barred by limitation. In view of the foregoing reasons, I am unable to interfere with the order passed by the execution court in dismissing the petition filed by the decrce-holder. In the result, the revision is dismissed. However, there will be no order as to costs.