- (1.) THIS revision petition arises in execution in O. S. No. 422 of 1981 on the file of District Munsif Court, Mettur.
(2.) FIRST respondent herein has obtained a decree, which reads thus, " (i) That the defendants and their men be and are, hereby permanently restrained by a permanent injunction from a ny manner interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. (ii) that the defendants be and are hereby directed by a mandatory injunction to demolish and remove the building constructed by them in the suit property in S. No. 2/a/2 obstructing the entrance marked as'a'in ex. C2 Commis-sioner'splan attached herewith to the building of the plaintiff within aperiod of 3 months from this date. (iii) that in default of such removal by the defendant within 3 months stated in decree in plan is at liberty to take appropriate steps for such removal" The decree is dated 30. 8. 1981. Decree holder filede. P. 200 of 1986 to execute the decree, by appointment of Commissioner and to remove obstruction. Petitioner took a contention that the decree is one for mandatory Injunction and since the execution petition was filed beyond three years. It is barred by time. The Objection was overruled by executing Court. Against the order Petitioner filed C. M. A. No. 27 of 1997 on the file of Subordinate Court . Sankari. The appeal itself was not maintainable being an order of execution. Appellate court held that the appeal is not maintainable but at the same time discussed the evidence and dismissed the appeal on merits. The same is challenged in C. R. P. No. 3316 of 1999. Petitioner also filed another revision against the order in execution petition rendered by executing court with an application to condone the delay of 757 days In filing the revision. In the application to condone delay it Is said that by mistake, the appeal was taken before Sub Judge and appeal is pending for more than two years and the pendency of appeal is taken as a ground to excuse the delay in filing revision. Since respondent also entered appearance by filing caveat, I heard the revision itself on merits at the admission stage. Learned counsel for petitioner submit that when lower appellate court held that appeal is not maintainable it has no jurisdiction to decide the matter on merits. I feel the said contention is only to be accepted. As per the amendment Act 104 of l976 to Code of Civil Procedure an order in execution is not appealable. Filing appeal before appellate court was therefore not correct and when the right of appeal is taken away by statute, appellate court also should not have entertained the same. Having rightly held that it has no jurisdiction, it should not have gone into the merits of the case. To what extent the impugned in C. R. P. No. 3316 of 1999 requires interference.
(3.) BY setting aside the order, appellant is not going to get any relief unless main order in execution is also challenged. That is why petitioner has filed another revision petition against the application with an application to condone the delay. Main reason that is stated in the revision is pendency of C. M. A. No. 59 of 1999 before lower appellate Court. Under Section 14 of the Limitation Act, pendency of a proceeding before a court having no jurisdiction is sufficient cause for condoning delay. Counsel for respondent, was also heard on the delay petition and what, he insisted was that revision petition itself may be heard on merits. He also did not dispute the correctness of legal position placed by counsel for appellant. I also find that sufficient cases is made out for condoning delay. Hence C. M. P. No. 19325 of 1999 in C. R. P. S. R. No. 88891 of 1999 was allowed and the office was directed to number the revision petition and the same is numbered as C. R. P. No. 3696 of 1999. I have already extracted the decree which is sought to be executed in this case. Only question that requires consideration is whether execution application is barred by time as contended by petitioner. According to counsel for petitioner, decree is for mandatory injunction and petitioner has been directed to remove certain structure which is causing obstruction to the passage of the decree holder. Under Article 135 of Limitation Act, decree holder gets only three years time from the date on which decree becomes enforceable. Three months time has been given to petitioner to obey the decree and on expiry of that period the decree becomes executable. Execution petition was filed only in 1986 i. e. , long after expiry of three years and the E. P. is barred. ;