SHAIALU SINGH REPRESENTED Vs. MOHINDER SINGH AND ANOTHER

JUDGEMENT

(1.) The respondent filed a suit for mandatory injunction against the petitioners for removal of the construction raised on the land owned by them and also prayed for prohibitory injunction. During the pendency of the suit, the plaintiff also filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure to restrain the defendants from raising any further construction over the property in dispute. In those proceedings, the defendants gave an undertaking before the Court that in case it is proved that the site in dispute is owned by the plaintiff, they themselves would remove the Malba and on this undertaking they were allowed to continue the construction. Ultimately, the suit was decreed and the defendants' appeal also failed on 18.10.1977.

(2.) The respondents took out execution on 4.1.1982. The petitioners raised objections that the execution application was barred by limitation as a decree for mandatory injunction under Article 135 of the Limitation Act, (hereinafter called the Act), could be enforced within a period of three years. The objections of the judgment-debtor had been declined by the Court below by order dated 5.1.1984 on the reasoning that it was not a case of execution of decree for mandatory injunction but was a case of enforcement of a solemn undertaking given by the defendants in the suit, for which there was no limitation and in any case Article 136 of the Act was applicable which provided a period of 12 years. The Court also held that non-compliance of the undertaking amounted to contempt within the meaning of a decision reported in Ekka Tonga Mazdoor Union and others v. The Aligarh Municipal Board and others, 1967 AIR(All) 93. This is revision by the judgment-debtor.

(3.) After hearing the learned counsel for the parties, I am of the view that on peculiar facts of this case the decree-holder is not seeking execution of the decree for mandatory injunction and, therefore, Article 135 of the Act will not be applicable. It is true that in the execution application it has been so stated but the substance of the execution application is on the basis of the undertaking given by the judgment debtor in the course of proceedings before the trial Court to remove the Malba on failing in the case. This matter would not fall under Article 135, but under Article 136 of the Act. The document Exhibit DH.4 is the undertaking given by the judgment-debtor before the trial Court, on the basis of which order Exhibit DH.5 was passed on 15.5.1973 vacating the injunction order on the clear and explicit undertaking given by the defendants to remove their unauthorised construction as and when the plaintiff succeed in their suit. The enforcement of the undertaking is not enforcement of a decree for mandatory injunction.