MALHA SINGH Vs. CHARANJI LAL AND ANOTHER

JUDGEMENT

(1.) THE subject -matter of dispute in this execution appeal is a chopal in Mohalla Padhan in the town of Kaithal in respect of which a representative suit had been brought in the year 1937 under the provisions of Order 1, Rule 8 of the Code of Civil Procedure, on behalf of 23 residents of the locality. The representative suit was filed by three Plaintiffs Sadhu Ram, Moti Ram and Sagta for a declaration that the property in suit being a chopal was to be used by the residents jointly of Mohalla Padhan as they were its owners. It was also prayed that the Defendants, Data Ram and his son Malha Singh should be restrained from altering the condition of the chopal and obstructing the joint user of it by the residents of the Mohalla. This suit was compromised on 25th of February, 1937, and it was decreed that the chopal shall remain open to the joint user of all the residents of Mohalla Padhan.

(2.) NOTHING was heard about this matter till an application was made by the Respondents, Charanji Lal and Tara Chand, who were included in the list of 23 residents on whose behalf the original suit in a representative capacity was brought under Order 1, Rule 8, on 1st of December, 1959, that the judgment -debtors were altering the structure of the chopal for its conversion for their exclusive occupation. The objections filed by the judgment -debtors were dismissed by the Subordinate Judge and having failed in their appeal before the learned District Judge of Karnal, the judgment -debtors have again come in this Court in appeal.

(3.) THE second submission of the learned Counsel for the Appellants is that the application for execution filed on 1st of December, 1959 was barred by time. It is urged that under Section 48 of the Code of Civil Procedure, the application for execution of the decree passed on 25th of February, 1937 (Exhibit D. H. 6) could not have been entertained, twelve years having expired therefrom. The obvious answer to this objection is that the decree was of a declaratory nature and execution was called for only if the judgment -debtors failed to honour its terms. It was only when the judgment -debtors had made attempts to alter the construction of the chopal which they were forbidden under the terms of the decree that a cause of action arose to file the application for execution. The appropriate provision in the Indian Limitation Act for such a situation is Article 181 which provides that applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure the time is three years from the date when the right to apply accrues. It is the failure of the judgment -debtors' observance of the terms of the decree that gave an occasion to the decree -holders to enforce the right. If it were otherwise the judgment -debtors could at their will disobey the decree after a period of 12 years with impunity. This would be a position which obviously calls tor redress and the Courts below have rightly applied article 181 of the Indian Limitation Act.