SHYAM SUNDER PRASAD Vs. RAMDAS SINGH

JUDGEMENT

(1.) This is a judgment-debtor's second appeal against the order of the 1st Additional Subordinate Judge of Saran, dated 10 August 194J, reversing that of the Munsif and directing that the execution case be restored to file and be disposed of according to law. Put shortly, the facts are that the plaintiff-decree- holder filed a representative suit against the appellant-judgment-debtor, for removal of obstructions, from a village public path, created by erection of a chabutra. The land concerned did belong to the judgment-debtor but it was subject to an encumbrance of right of way enuring to the benefit of the villagers. The plaintiff obtained a decree on 22 November, 1928. The decree of the Court was based upon two awards given by arbitrators, to whom the subject-matter of the suit had been referred, with leave of the Court. The awards were dated 20th August 1928 and 27 September 1928, with which I shall deal in a little more detail presently. The suit as originally framed involved a prayer for issue of a permanent injunction as against the defendants in the following terms: That on passing a decree in respect of the above facts, it may be held by the Court that the said pathways which are shown by letters A, B, C and D in the map annexed to the plaint are from time immemorial existing, that the survey entry contrary to this is wrong, that the plaintiff or other persons are not bound thereby, that the conveyance of the plaintiff and others, namely, bullock-carts, elephants and horses have passed along the same and that the plaintiff and others have acquired right of easement also in the said pathways, that on the determination of the above reliefs defendant 1 may be ordered to remove all the obstructions from the said pathways which he has caused thereupon just north and west of the verandah of his old dalan and he may be restrained by means of permanent injunction from making new obstructions on the said pathways so that the grievance of the plaintiff and others may be redressed.

(2.) The arbitrators, however, in framing their awards did not conform to the nature of reliefs as cast in the plaint, and accordingly the decree that followed did not in clear and express words purport to grant a permanent injunction restraining the defendant-judgment-debtors from committing nuisance of obstructing the alleged pathways. It is clear, however, that the plaintiff's relief of having the obstruction offered by the defendant's chabutra removed was not granted. The arbitrators, however, expressly declared that the plaintiffs (in other words, the village public) had a right of way on lands adjoining the chabutra on its three sides and a continuous pathway from east to west to their respective houses on the west. The present execution has been levied by an application dated 14th September 1943, which admittedly is more than 12 years from the decree which, as already stated, was passed on 22 November, 1928. The obvious objection, therefore, is that the decree has lapsed and is incapable of execution being contrary to the provisions of Section 48, Civil P.C. To this objection of the judgment-debtor, the decree-holder's reply is that the decree under execution being one for a permanent injunction, the 12 years rule of limitation does not apply, and that the decree was finally amended on 1 December 1941, in accordance with the orders of the High Court, and as such, the execution is not time-barred being within three years of the amended decree.

(3.) The judgment-debtors, besides the plea of limitation, also advanced further pleas, namely, of res judicata or estoppel by judgment. To bring the contentions advanced by the respective parties to relief, a short narration of events that have happened between the date of the decree and the date of this execution has to be set out. The earliest execution that was launched was on 20 September 1929, and the mode in which the Court's assistance was sought for enforcing the decree was to get the pathway demarcated and possession thereof delivered. This execution case was filed in Court of the 3 Munsif of Chapra. The decree-holder made an application for amendment of the decree in the 1 Munsif's Court, Chapra, which was in the long run disallowed on 10 June 1930. The aforesaid execution case was dismissed for default on 30 January 1930. No further steps were taken for executing the decree till 1940 when Execution Case No. 623 of 1940 was again filed for demarcating the pathway and delivery of its possession. This execution was resisted by the judgment-debtor on the ground that it was barred by limitation. The judgment-debtor's plea found favour with the executing Court who dismissed the same on 2 July, 1940. An appeal was taken to the Court of the District Judge, from this order of the Munsif. dismissing the execution case, and the learned District Judge also agreed with the Munsif and dismissed the appeal on 19 February 1940. No appeal was taken to this Court as against the aforesaid appellate order dismissing the execution case as barred by limitation.