Shaialu Singh (deceased) Represented by L.Rs vs Mohinder Singh and another

G.C. Mital, J.—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.

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 judgmentdebtor 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 noncompliance 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, AIR 1967 Allahabad 93. This is revision by the judgmentdebtor.

After hearing the learned counsel for the parties, I am of the view that on peculiar facts of this case the decreeholder 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 judgmentdebtor 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.

It was argued by Shri M.L.Sarin that the Court below has noticed that non compliance of the undertaking amounts to contempt. The learned counsel urges that a petition for contempt of Court could be filed within one year of the noncompliance of the undertaking and thereafter the contempt petition is barred. It is true, but the present proceedings are not for punishing the guilty person for contempt of Court but for enforcing the undertaking in execution proceedings before a Civil Court. Hence, this point is without any merit.

It was also urged that the interim order passed by the Court below on the undertaking of the petitioner merged in the final judgment and decree passed by the trial Court and it is the judgment and decree which can be executed and not the interim order. I do not find any merit in this contention. The solemn undertaking given to the Court below was conditional that in case the petitioner loses in the suit finally, he will remove superstructure himself. Therefore, the undertaking became enforceable on two conditions : (1) the case being finally decided, and (2) that too against the petitioner. Hence, both these matters are against the petitioner and, therefore, the undertaking could be enforced.

Lastly, it was argued that under equity jurisdiction the portion of the residential house of the petitioner should not be ordered to be demolished. A person, who seeks equity, must also do equity. In this case, the respondents are executing the undertaking given by the petitioner and, therefore, law is on other side. Therefore, the question of equity does not arise in these circumstances.

For the reasons recorded above, there is no merit in this revision and the same is hereby dismissed with costs.