MOMAN Vs. MUNSHI

JUDGEMENT

(1.) The revision has been filed against the order dated 14-9-1993 passed in Execution Case No. 10/1993, by which the application under Section 47 of the Code of the Civil Procedure, 1908 (for short, "the Code") filed by the petitioner has been rejected.

(2.) The facts and circumstances giving rise to this revision are that plaintiff/non-petitioners filed a suit against the defendant-petitioner seeking the relief of perpetual injunction. The suit was decreed on 21-5-1982 by the trial court. The appeal against the said judgment and decree was dismissed by the first appellate court on 28-11-1989 and the second appeal was dismissed by this court vide judgment and order dated 16-3-1993. During pendency of the first and the second appeals, no interim injunction had been granted. Plaintiff/non-petitioners filed an Execution Application on 4-5-1993 for enforcement of the mandatory decree, i.e. removal of the wall from the suit property. Defendant-petitioner filed objection under Section 47 of the Code on the ground that in view of the specific provisions of Article 135 of the Limitation Act, 1963 (for short, "the Act, 1963"), mandatory decree could be executed within the period of three years from the date the decree becomes executable from the date fixed by the Court for the performance of such decree. The Executing Court rejected the said objection. Hence this revision.

(3.) Mr. K.N. Joshi, learned counsel for the petitioner, has raised the issue that in view of the specific provisions of Article 135 of the Act, 1963, the mandatory decree could be enforced-only within the period of three years from the date of the decree of the trial court for the reason that there has been no stay of execution of that decree by the first or the second appellate courts.