Case Note & Summary
The litigation arose from a civil suit filed by the petitioner Comunidade of Margao seeking restoration of vacant possession of suit land by directing the defendants to remove illegal construction and plantation. The suit was decreed on 17/10/2011, and the decree directed the defendants to remove and demolish illegal constructions situated in the said plot. The petitioner later filed Regular Execution Application No. 95/2016/F seeking assistance of the court to hand over vacant possession and to appoint a commissioner to remove the construction. The judgment debtors raised a preliminary objection to maintainability, contending that the decree was only for mandatory injunction and that the execution filed beyond three years was barred by Article 135 of the Limitation Act, 1963. The executing court by order dated 24/01/2019 upheld the objection and dismissed the execution as time-barred. The petitioner challenged that order before the High Court. The petitioner argued that the decree was combined for restoration of possession and demolition of illegal structures, and therefore Article 136 of the Limitation Act, 1963 (twelve-year period) applied, not Article 135. The respondents argued that the decree was for mandatory injunction to demolish illegal structures and without demolition, restoration of possession was not possible. The High Court examined the plaint prayer, the judgment, and the execution application. It noted that the suit and decree were basically for restoration of the suit property together with handing over vacant possession, and the removal of illegal construction was a consequential step. The court distinguished the decision in Mahaboob Sahab relied upon by respondents, observing that in that case there was no prayer for restoration of possession, whereas the present decree included restoration of possession. The extracted text does not contain the final operative order, but the reasoning indicates that the court found the executing court's order erroneous and that Article 136 applied.
Headnote
A) Civil Procedure - Execution of Decrees - Limitation for Execution - Limitation Act, 1963, Articles 135 and 136 - Decree for restoration of possession by demolition of illegal structures is primarily for possession, demolition is consequential relief - Execution application beyond three years but within twelve years governed by Article 136, not Article 135 - Held that executing court erred in dismissing execution as time-barred (Paras 16-17).
B) Precedent - Distinguishing Cases - Mahaboob Sahab v. Shivrajappa - Limitation Act, 1963, Articles 135 and 136 - In Mahaboob Sahab, decree was only for mandatory injunction without prayer for restoration of possession; present decree included restoration of possession - Held that precedent not applicable to present decree (Para 18).
Issue of Consideration
Whether execution application filed beyond three years but within twelve years was barred by limitation under Article 135 of the Limitation Act, 1963 as a decree for mandatory injunction, or whether Article 136 applied because the decree was for restoration of possession of immovable property with demolition of illegal structures as a consequential step.
Law Points
- Execution of decree for restoration of possession of immovable property by demolishing illegal structures is governed by Article 136 of the Limitation Act
- 1963
- providing twelve-year limitation
- Article 135 of the Limitation Act
- 1963 applies to decrees for mandatory injunction simpliciter
- a decree primarily for possession with demolition as consequential relief attracts Article 136
- not Article 135
- executing court misconstrued decree when treating it as mandatory injunction
- precedent in Mahaboob Sahab distinguishable as that decree lacked prayer for restoration of possession
Case Details
2023 LawText (BOM) (01) 271
Writ Petition No. 441 of 2021
Mr. Sudin Usgaonkar, Senior Advocate with Mr. Pooja Naik and Ms. S. Usgaonkar for the petitioner; Mr. Deepak Gaonkar for Respondent Nos. 1 to 5; Mr. Shailesh Redkar with Ms. K. Desai for Respondent Nos. 6 to 7
Comunidade of Margao, Represented by the Procurator/Attorney of its Managing Committee, Mr Savio Xavier Rodrigues
Jairam Babusso Sirodcar (since deceased) Through his legal representatives: 1. Mrs. Shama Vivek Parab, 2. Mr. Vivel Parab, 3. Mrs. Geeta Hemant Mayekar, 4. Mr. Hemant Mayekar, 5. Miss Sulaksha Jairam Shirodkar, 6. Mr. Sushant Jairam Shirodkar, 7. Mrs. Jairam Babussao Sirodkar
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Nature of Litigation
Writ petition challenging the executing court's order dismissing execution application as time-barred
Remedy Sought
Petitioner sought quashing of the executing court's order dated 24/01/2019 and restoration of execution proceedings for possession of suit land
Filing Reason
Executing court held the decree was only for mandatory injunction and execution filed beyond three years was barred by Article 135 of Limitation Act, 1963
Previous Decisions
Civil Court decreed the suit on 17/10/2011 in Regular Civil Suit No. 248 of 1975; executing court dismissed execution vide order dated 24/01/2019; no other previous decisions mentioned
Issues
Whether execution of decree for restoration of possession by demolishing illegal structures is governed by Article 135 or Article 136 of Limitation Act, 1963
Whether executing court erred in dismissing execution application as time-barred
Submissions/Arguments
Petitioner argued the decree was combined for restoration of possession and demolition of illegal structures, hence Article 136 of Limitation Act applied, and the executing court misconstrued the decree
Respondents argued the decree was for mandatory injunction to demolish illegal structures, and since restoration of possession was not possible without demolition, execution filed beyond three years was barred by Article 135 of Limitation Act
Ratio Decidendi
A decree for restoration of possession of immovable property by demolition of illegal structures is essentially a decree for possession; the demolition is a consequential step. Execution of such a decree is governed by Article 136 of the Limitation Act, 1963 providing a twelve-year period, not Article 135 which applies to decrees for mandatory injunction simpliciter.
Judgment Excerpts
Free and vacant possession of the suit land by ordering the Defendants to remove the construction and plantation from the same.
The defendants are hereby directed to remove and demolish the illegal constructions situated in the said plot.
The suit as well as decree passed in favour of the decree holder is basically for the restoration of the suit property together with handing over of vacant possession and in that process to remove the illegal construction carried out by the judgment debtor.
In the case of Mahaboob Sahab (supra), the decree passed in favour of decree holder was only for mandatory injunction and there was no prayer for restoration of possession in favour of the decree holder.
Procedural History
Petitioner filed Regular Civil Suit No. 248 of 1975 for eviction and removal of construction; suit was decreed on 17/10/2011 directing defendants to remove and demolish illegal constructions; petitioner then filed Regular Execution Application No. 95/2016/F seeking assistance including handing over possession and demolition; judgment debtors raised preliminary objection vide application Exh.14; executing court by order dated 24/01/2019 allowed objection and dismissed execution as time-barred under Article 135 of Limitation Act; petitioner filed Writ Petition No. 441 of 2021 challenging that order.
Acts & Sections
- Limitation Act, 1963: Article 135, Article 136
