AI Structured Summary
Not yet generated for this judgment
Judgment
A.P. Lavande, J.—Heard Mr. Shirodkar, learned counsel for the applicants and Mrs. Agni, learned counsel for the respondents. By this petition under Article 227 of the Constitution of India, the petitioners challenge order dated 24/8/2010 passed by the Civil Judge Junior Division at Vasco in Regular Execution No. 4/2003/D by which objections of the petitioners to execution of the decree dated 29/8/1990 passed in Special Civil Suit No. 117 of 1989 before the Civil Judge, Junior Division, Vasco has been dismissed and the petitioners have been directed to hand order possession of the suit property. The petitioners are also directed to stop further constructions and also to demolish structures existing therein, to restore the suit property to its original condition within the period for three months and in the event of failure to comply with the order, the petitioner would be detained in civil prison for a period of 30 days.
Mr. Shirodkar, learned counsel appearing for the petitioners submitted that since the decree which is sought to be executed is for permanent injunction and mandatory injunction the execution application filed in the year 2003 is clearly barred by limitation having been filed after a period of 12 years. Learned counsel further submitted that since the petitioner had raised the issue of mundkarship, the Executing Court ought to have referred the issue to the Mamlatdar for adjudication since it had no jurisdiction to decide the said issue. Mr. Shirodkar submitted that the revision filed against the impugned order is maintainable. He placed reliance upon the judgment of this Court in the case of Girijappa S/O Rambhausutar (died Through LRS) and anr. Vs. Yeshwanta S/O Gangaramcandale (Died Through Lrs), 2005 (2) B C J 155 and in the case of Simon Vs. Athirampuzha Panchayat, .
Mrs. Agni, learned counsel appearing for the respondents submitted that the present revision application is not maintainable in as much as even if the argument of Mr. Shirodkar is accepted, the proceeding would not come to an end and as such, the revision application is not maintainable.
Mrs. Agni placed reliance on judgment of the Apex Court in the case of Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj Developers & others, 2004 (1) Bom. C.R. 380.
I have considered the rival submissions and perused the record and the judgments relied upon.
Section 115 of C.P.C reads thus:
The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if suchsubordinate Court appears-
(a) to have exercised a jurisdiction not vestedin it by law, or
(b) to have failed to exercise a jurisdiction sovested, or
(c) to have acted in the exercise of itsjurisdiction illegally or with material irregularity. The High Court may make such order in the case as it thinks fit:-Provided that the High Court shall not, under this section, vary or reverse any ordermade, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made infavour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High court or to any Court subordinate thereto ;
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Upon a plain reading of Section 115 of C.P.C, it is evident that this Court in exercise of revisional jurisdiction would not interfere with the order passed by the Subordinate Court unless the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
In the present case, the execution application filed in so far as relief of permanent injunction is concerned would not be said to be barred by limitation. Moreover, according to Mr. Shirodkar himself the issue of mundkarship ought to have been referred to the Mamlatdar. Obviously, therefore, even if any order was made in favour of the petitioner the execution proceeding would not have come to an end. Therefore, I find merit in the submission of Ms. Agni that the present revision application is not maintainable.
In so far as the judgment in the case of M.J. Simon (supra) is concerned, the factual matrix in the said case is entirely different. In the said case the Kerala High Court has dealt with the question as to whether if a decree granting mandatory injunction has become unexecutable because of bar of limitation, the other part of the decree granting perpetual injunction can be enforced by the Court. The Kerala High court held that Article 136 does not provide for limitation for enforcement of decree granting mandatory injunction. The said judgment therefore does advance the case of the petitioner. In so far as the judgment in the case of Girijappa R. Sutar (supra) of this Court is concerned, in the said case the Apex Court held that revision was maintainable since the objections, if were allowed, the execution proceedings would stand terminated. Therefore, the ratio of the said judgment does not help the petitioners. In view of the above discussion, I am of the considered opinion that the present revision application filed against the impugned order is not maintainable. Accordingly, the revision application is dismissed. Needless to mention that dismissal of this revision application would not come in the way of the petitioners from availing of appropriate remedy as may be available to them against the impugned order.