Mahavirprasad Sharma vs Surendra Ambalal Khatri and Another

V.V. Kamat, J.—This revision is filed u/s 115 of the C.P.C. against the impugned order dated September 10, 1993 of the learned Joint Civil Judge, Senior Division, Amravati, in execution proceedings regular Darkhast No. 115/1991.

Regular Civil Suit No. 474/1980 ended in acceptance of the terms of compromise by the Court on July, 15,1983. The terms of the compromise, for convenience are reproduced here in below:

It is for the execution of these terms the present proceedings are initiated.

The question that was raised before the learned Judge and is decided by the impugned order is, as to whether the initiation of Darkhast proceeding is within the necessary limitation. The learned Judge has relied on Article 136 of the Limitation Act, specifying 12 years period of limitation. The learned Counsel urged that it is not Article 136 but it is Article 135 that would govern the matter. Article 135 relates to a situation where the decree is for mandatory injunction specifying 3 years period of limitation either from the date of the decree or where the date is fixed for performance, such date. The question is, as to whether the compromise terms specified herein before would be in the nature of mandatory injuction? The learned Counsel relied on the provisions of Section 39 of the Specific Relief Act, 1963. Factually these terms of compromise have been accepted by the Court as compromise between the parties. The Court, when issues directions in the nature of an injuction to complex the performance of certain acts, which the Court is capable of enforcing, such a direction is defined as mandatory injunction in the aforesaid provision. Reading the terms of the compromise which are just accepted by the Court, firstly they are not in the nature of injunction but what is agreed between the parties is to the offered that nothing should be kept on the passage or road by way of an encroachment. Additionally, it is also agreed between the parties that the plaintiff should open the window in question and remove the in-sheet over the same, which should not be objected by the defendant. Factually, these are the agreements between the parties to regulate their behaviour in future, which have been accepted by the Court and cannot be in the nature of mandatory directions. It is only when there was an occasion to enforce the compromise decree Darkhast Proceedings are initiated. The learned Judge was right in resorting to the provisions of Article 136 of the Limitation Act. Even otherwise Darkhast proceedings have been initiated when there was an occasion.

The learned Counsel has urged that the order directing removal of the pillars and an order directing prevention of obstruction should be reconsidered. Taking into consideration the terms of the compromise, it is perfectly agreed between the parties and the said agreements is accepted by the Court that there should and be any obstruction of any nature in regard to the passage and its use and on the road in front thereof by keeping the drawn and any other similar things. There is also an agreement between the parties with regard to the right of the plaintiff to open the window at any time. The learned Judge cannot be said to be in error in any way in regard thereto. Revision application thus stands summarily dismissed.