VARINDER KUMAR Vs. SUNIL KHANNA & ANOTHER

JUDGEMENT

(1.) This revision petition is directed against the order dated 19.1.2006, passed by learned Civil Judge (Junior Division) Court No. IV, Shimla, whereby an application under Section 14(2) read with Section 151CPC filed in Execution Petition No. 7/10 of 2003, has been dismissed and as a consequence thereof, the Execution Petition has also been dismissed being time barred.

(2.) The challenge to the impugned order is on the ground, inter alia, that learned court below has exceeded its jurisdiction and rather exercised jurisdiction not vested in it under Law while dismissing the application and declining the prayer to condone delay as was occurred in filing the Execution Petition to execute the decree passed in the suit filed by the petitioner-plaintiff. Learned trial court is stated to have failed to consider that no limitation is prescribed for enforcing or executing a decree qua perpetual injunction. Learned trial court allegedly erred while arriving at a conclusion that the benefit of Section 14(2) of the Limitation Act could have only been availed at the time of institution of first execution petition and not subsequent execution petitions. The Law which provides that the benefit of Section 14(2) of the Limitation Act is available even in execution proceedings also has not been taken into consideration.

(3.) In order to decide the fate of this petition, it is desirable to take note of the facts of the case in a nut shell. The petitioner herein had filed Civil Suit No. 40/1 of 1990 for seeking declaration to the effect that he is exclusive owner-in-possession of three storeyed building bearing No. 167 Ganj Bazar, Shimla. He alongwith the defendant has raised common wall and stairs in terms of the agreement arrived at between them. However, the defendant in contravention of the agreement illegally opened the windows of his house upon the common wall towards the shop of the plaintiff and also put iron railing on the stairs as well as placed water tank on the common space. Therefore, the decree for mandatory injunction directing the defendant to close the windows he opened on the stairs permanently and remove iron shutter and railing on the common stairs as well as the water tank he placed over the common space was sought to be passed. The defendant was also sought to be restrained permanently from opening any new door, window and ventilator etc. towards the shop of the plaintiff.