CAV Judgment
1. Heard Mr. Percy Kavina, learned Senior Counsel with Mr. S. P. Majmudar, learned Advocate for the petitioners.
2. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"A. YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 26.05.2026 (at Annexure A) passed below Exhibit-1 by the Learned Principal Civil Judge and J.M.F.C., Lodhika in Execution Petition No. 4 of 2023, in the interest of justice.
B. During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned order dated 26.05.2026 (at Annexure A) below Exhibit 1 passed by the learned Principal Civil Judge and J.M.F.C., Lodhika in Execution Petition No. 4 of 2023 and further be pleased to stay all further proceedings of Execution Petition No. 4 of 2023 pending before the learned Principal Civil Judge and J.M.F.C., Lodhika and further be pleased to direct all parties to maintain status quo with regard pertaining to the land in question, in the interest of justice;
C. Pass any such other and/or further orders that may be thought just and proper in the facts and circumstances of the present case."
3. The petitioners herein are original defendant Nos. 1, 2 and 7, whereas respondent No. 1 is the original plaintiff and respondent Nos. 2 to 6 are original defendant Nos. 3 to 6 and 8, respectively.
4. For the sake of convenience, herein after, the parties will be referred to as per their original positions in the suit.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
5.1. The Special Civil Suit No. 59 of 2009 was filed by respondent No. 1 - original plaintiff against the present petitioners - defendant No. 1, 2 & 7 and the rest of the respondents of this petition - the remaining defendants of said suit, seeking specific performance of a registered agreement to sell (hereinafter referred to as "ATS") dated 05.09.2006 in relation to the suit property. As per the case of the plaintiff, defendant Nos. 1 and 2 are the original owners of the suit property who executed one agreement to sell dated 10.01.2001 in favour of defendant No. 4. Since the defendant No. 4 paid the entire sale consideration, as per his instructions, defendant Nos. 1 and 2, through defendant No. 3, who happens to be the power of attorney holder of defendant Nos. 1 and 2 executed the registered ATS in favour of the plaintiff. Thus, the aforesaid suit was filed against the defendants seeking specific performance of the registered ATS.
5.2. It appears that during the pendency of the suit, the parties to the suit have compromised and as per the compromise agreement entered between the parties, the consent decree came to be passed by the Trial Court on 13.04.2015. After passing of the consent decree, since the petitioners/defendants have not acted upon it, impugned execution petition, being Execution Petition No. 4 of 2023, came to be filed by the plaintiff against the defendants.
5.3. The petitioners - concerned defendants, appears to have objected the aforesaid execution petition on several grounds, whereby they have prayed to dismiss the execution petition. After hearing the parties, the Trial Court, vide its impugned order dated 26.05.2026 passed in the said execution, turned down those objections, as it has found no substance in the grievances raised by the judgment debtors-petitioners. Hence, the present petition.
6. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
6.1. At the outset, Mr. Kavina, learned Senior Counsel assisted by Mr. S. P. Majmudar, learned Advocate for the petitioners, would submit that consent decree passed on 13.04.2015 cannot be executed after period of 3 years from passing of such decree and as such, the execution petition in question filed by the plaintiff - judgment debtor is ex facie time-barred and the decree is unenforceable.
6.2. According to Mr. Kavina, learned Senior Counsel, the consent decree passed is nothing but a decree in the form of a mandatory injunction, and such decree is required to be executed within 3 years from passing of such decree. It is submitted that as per Article 135 of the Indian Limitation Act, 1963 (hereinafter referred to as "the Limitation Act"), after 3 years of date of the decree of a mandatory injunction, no decree granting a mandatory injunction can be executed by any court of law and as such it is unenforceable.
6.3. Mr. Kavina, learned Senior Counsel, would submit that though such contentions about non-maintainability of the execution petition and the unenforceability of consent decree were raised before the Executing Court, it being a pure question of law of limitation, this Court needs to take note of Section 3 of the Limitation Act, then it is required to examine such issue. It is submitted that this Court should exercise its power under Article 227 of the Constitution of India, and hold that the execution petition in question itself is not maintainable as it is time-barred.
6.4. Mr. Kavina, learned Senior Counsel, would emphasize, by placing reliance upon the terms and conditions of the agreement between the parties and he would submit that such terms and conditions cast a duty upon the parties to act upon agreed terms and any such decree passed on basis of such terms would be considered as a decree granting a mandatory injunction. It is submitted that merely because the consent decree is passed by the Trial Court, it cannot be construed that it is not a decree granting a mandatory injunction. It is further submitted that once the execution petition is filed beyond the period of limitation as prescribed under Article 135 of the Limitation Act, then considering Section 3 of the Limitation Act read with Order 21 of the Code of Civil Procedure, 1908, any execution petition filed beyond a period of 3 years for the execution of a decree granting a mandatory injunction, such execution petition requires to be rejected as time-barred. It is also submitted that the provision of Section 5 of the Limitation Act is not applicable in execution proceedings and in view of the aforesaid facts, this Court should entertain this petition.
6.5. To buttress his arguments, Mr. Kavina, learned Senior Counsel, would rely upon the following few decisions:
(i). Damodaran Pillai and others V/s. South Indian Bank Ltd., reported in (2005) 7 SCC 300;
(ii). Noharlal Verma V/s. District Cooperative Central Bank Limited, reported in (2008) 14 SCC 445;
(iii). Pathapati Subba Reddy (Died) by LRs. And others Vs. Special Deputy Collector (LA), reported in 2024 SCC Online SC 513
(iv). M. J. Sarojama V/s. K. Pedda Chenna Reddi, reported in (1977) Supreme(AP) 238;
(v). Sesu Naika V/s. The Paivalike Panchayath & Ors., reported in 2008 SCC OnLine Ker 137.
6.6. Making the above submissions, Mr. Kavina, learned Senior Counsel, would request this Court to allow the present petition.
7. No other and further submissions are being made by Mr. Kavina, learned Senior Counsel.
ANALYSIS & REASONS
8. At the outset, I would like to observe that though the petitioners have raised several grounds in this petition, but Mr. Kavina, learned Senior Counsel for the petitioners, has raised only one contention in regards to non-executability of the consent decree granting a mandatory injunction as according to him, the execution petition is filed beyond period prescribed under Article 135 of the Limitation Act. Accordingly, the reasons which were assigned by the Executing Court while rejecting the objections of the defendants-judgment debtors vide its impugned order, though assailed by way of this petition, but not questioned by the petitioners during course of oral submissions. Since no submissions in that regard have been made, then I would not like to make any comment on the impugned order anymore, except to examine the sole contention raised on behalf of the petitioners.
9. Having heard Mr. Kavina, learned Senior Counsel with Mr. Majmudar, learned Advocate for the petitioners at length and after going through the impugned order passed by the Executing Court as well as the pleadings made by the petitioner in this petition, it appears that the aforesaid sole contention which is now sought to be raised by Mr. Kavina, learned Senior Counsel before me, was neither pressed into service before the Executing Court nor pleaded in this petition.
10. Thus, in view of above submissions, the following questions need to be answered by me as to "whether in the facts and circumstances of the case, the consent decree drawn by the trial court is a decree granting a mandatory injunction?" And "whether the execution petition in question is filed beyond period of limitation as prescribed under the Limitation Act?"
11. Now, to appreciate the aforesaid questions of law which, according to Mr. Kavina, learned Senior Counsel, goes to the root of the matter inasmuch as the execution petition in question is hopelessly time-barred, and since no such arguments ever raised before the Executing court in this regards, first of all the nature of the consent decree in question passed-drawn on 13.04.2015 is required to be ascertained, i.e., the consent decree is in fact granting a mandatory injunction or not?.
11.1. There is no cavil, and the petitioners-defendants cannot dispute the fact, that Special Civil Suit No. 59 of 2009 in which the consent decree was passed, it was a suit for specific performance of the ATS. Such suit appears to have been filed under Section 10 read with Section 15 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act, 1963") and any decree passed thereon by the Court would be governed by Article 136 of the Limitation Act. The period prescribed for its execution is 12 years from passing of the decree or from the date it becomes enforceable, as the case may be.
11.2. I have gone through the terms and conditions upon which the consent decree came to be passed by the Trial Court, which, in fact reproduced by the Executing Court in its impugned order at paragraph 9, which reads thus:
"A compromise has been reached mutually between the parties of this suit.
a. The suit property, which is situated in Rajkot District, Lodhika Taluka, Village Ravki, bearing R.S. No. 206 paiki 95, known as "Vidi" land admeasuring 17 Acres 33 Gunthas, was held by Defendants No. 1, 2 and the heirs of late Umedsinh Ajubha Jadeja in Khata No. 234 and as per Village Form No. 6 Hak Patrak Entry No. 689, 770. Accordingly, all parties hereby admit that the Defendants have legal right, title, interest, and share in the said suit property, which is the agricultural land known as "Vidi" of R.S. No. 206 paiki 95 admeasuring 17 Acres 33 Gunthas.
b. Defendant No. 1 and 2 had agreed to sell the said land to Defendant No. 4 at the rate of Rs. 50,000/- per acre on 10-01- 2001. Subsequently, an amount of Rs. 8,50,000/- was accepted from Defendant No. 2 by cheques and cash by 15-05-2002. For this, a registered Agreement to Sell in favor of Defendant No. 4 was executed before Notary Shri J. V. Gangani on 15-04-2002. Additionally, a General Power of Attorney was executed in favor of Defendant No. 3 before Notary Shri J. V. Gangani on 15-05- 2002. Since other owners have not signed the registered Agreement to Sell or the General Power of Attorney as an ancestral co-owner, all parties accept that the said agreement to sell is null, void, and cancelled from the beginning and cannot be implemented. Regarding the amount received from Defendant No. 4 by Defendant No. 1 and 2 there remains no dispute whatsoever regarding the refund of the consideration amount paid, which the Plaintiff and all Defendants accept.
c. Thereafter, acting on the instructions of Defendant No. 4, Defendant No. 3 agreed to sell the "Vidi" agricultural land of Village Ravki Revenue Survey No. 206 paiki 95, admeasuring 17 Acres 33 Gunthas to the Plaintiff on 7-8-2002 for a total price of Rs. 13,60,000/- Defendant No. 3 accepted the consideration and executed a registered Agreement to Sell in favor of the Plaintiff at the Gondal Sub Registrar Office at Sr. No. 6492 on 05-09-2006. Since the General Power of Attorney in favor of Defendant No. 4 is cancelled, the Agreement to Sell in favor of Defendant No. 3 also becomes cancelled, rendering the Agreement to Sell executed in favor of the Plaintiff null and void, which the parties accept. However, as part of a compromise in this suit, out of the 17-33 Gunthas land, Defendants No. 1, 2 and Defendants No. 5 to 8 agree to give 7-00 Gunthas of land to the Plaintiff. The registered Agreement to Sell executed by Defendant No. 3 in favor of the Plaintiff shall be cancelled by the Plaintiff. Defendants No. 1, 2 and Defendants No. 5 to 8 shall execute the necessary registered sale deed for the 7-00 Gunthas of land in favor of the Plaintiff. The parties have agreed that the consideration amount accepted by Defendant No. 3 shall be retained by Defendant No. 3. The 7-00 Gunthas of land to be given to the Plaintiff through this compromise is as per the boundaries mentioned in paragraph 11 of this compromise. Defendants No. 1, 2 and Defendants No. 5 to 8 accept that the permission required from the concerned authority for the sale of the entire land of R.S. No. 206 paiki 95 shall be obtained at the expense of the Plaintiff.
d. For the land admeasuring 7-00 Gunthas towards the North side out of the land admeasuring 17-33 Gunthas as per the registered Agreement to Sell Sr. No. 6492 dated 5-9-2006 executed by Defendant No. 4 in favor of the Plaintiff, all parties to the suit agree to maintain the claim. As per the compromise reached among all parties, Defendants No. 1, 2, and 5 to 8 agree and are bound to execute the registered sale deed for the 7-00 Gunthas land with boundaries as described in paragraph No. 10 of this compromise in favor of the Plaintiff, after obtaining the necessary permission from the Deputy Collector. Defendants No. 1, 2, and 5 to 8 admit and assure that they will not commit any default in obtaining necessary permissions. If defendants fail to execute the document, the Plaintiff can file an execution petition and get the document executed through a Court Commissioner appointed by the Hon'ble Court.
e. Out of the 17-33 Gunthas suit land, for the land admeasuring 7-00 Gunthas, all Defendants of the suit declare that the full consideration amount has been received. Therefore, the Plaintiff does not have to pay any amount to the Defendants for this property. Similarly, as the Plaintiff's claim is considered only for 7- 00 Gunthas, the Defendants also do not have to refund any amount to the Plaintiff and the consideration given is to be considered to have been given for this 7 acre land. Therefore, the defendants are also not required to give any amount as refund to plaintiff.
f. The road leading from Ravki to Khamba village passes from North to South exactly through the middle of the suit property. Excluding the land deducted for this road, the net land of 7-00 Gunthas will be given by Defendants No. 1, 2 and Defendants No. 5 to 8 to the Plaintiff as per the compromise.
g. The 7-00 Gunthas land under the compromise is Vidi land of old tenure as per the authority mentioned in Village Form No. 7 of the revenue records. The proceedings to obtain permission for the sale of this land are to be carried out by Defendants No. 1, 2 and Defendants No. 5 to 8. If the competent authority denies permission without any valid reason, the defendants are required to take legal action up to the Hon'ble Supreme Court. Furthermore, since Defendants No. 1, 2 and Defendants No. 5 to 8 cannot remain present everywhere, they have today executed a General Power of Attorney in favor of Shri Vimalbhai Vallabhbhai Tadhani, a person suggested by the Plaintiff, to carry out all proceedings to execute the registered sale deed for the 7-00 Gunthas of land. The Plaintiff shall incur all the expenses for the said Power of Attorney. Despite this, wherever personal presence is required, Defendants No. 1, 2 and Defendants No. 5 to 8 assure to remain present.
h. Based on the Agreement to Sell between Defendant No. 4 and Plaintiff as well as based on the General Power of Attorney if the Defendant No. 3 has carried out any transaction regarding the suit land, the responsibility for all types of costs and consequences will be of the Plaintiff. Due to any such transactions by the Plaintiff and Defendant No. 3 and 8, if any dispute arises regarding the remaining 10-33 Gunthas of land (out of the suit land) belonging to Defendants No. 1, 2 and Defendants No. 5 to 8, the responsibility for all types of costs and consequences will remain with the Plaintiff. The Plaintiff accepts this.
i. Out of the Vidi land of R.S. No. 206 paiki 95 paiki of Ravki Village, for the 7-00 Gunthas land with boundaries as stated in paragraph No. 10 of this compromise, the separate possession on site has been handed over today by Defendants No. 1, 2 and Defendants No. 5 to 8 to the Plaintiff. The Plaintiff has taken over the said possession today. Therefore, the Defendants, their servants, agents, descendants, heirs, guardians or anyone else shall not cause any interference, obstruction, or hurdle in any manner. As the possession is handed over today if any technical difficulty arises in obtaining the sale permission due to this, the responsibility will be of the Plaintiff.
j. Similarly, out of the Vidi land of R.S. No. 206 paiki 95 paiki of Ravki Village, excluding the land decided to be given by document through this compromise, the separate possession of the remaining 10-33 Gunthas of land is with Defendants No. 1, 2 and Defendants No. 5 to 8. Therefore, the Plaintiff or their servants, agents, descendants, heirs, guardians or anyone else shall not cause any interference, obstruction, or hurdle in any manner.
k. Out of the Vidi agricultural land admeasuring 17-33 Gunthas of R.S. No. 206 paiki of Ravki Village, the boundaries of the 7-00 Gunthas land towards the North direction to be given to the Plaintiff by executing a document through this compromise are as follows:
North:After Government waste land, both streams (Vokalas) meet.
South: Out of this Survey No. 206 paiki 95, the remaining 10-33 Gunthas land belonging to Defendants No. 1, 2, 5 to 8.
East: Stream (Vokalo) and Check dam.
West: Stream (Vokalo).
l. On the South side of the land with the above boundaries is the well, light connection, pucca house, water bore, windmill, and various fruit-flower trees owned by the heirs of late Umedsinh Ajubha, Defendants No. 1, 2, 5 to 8. The Plaintiff and Defendants No. 3 and 4, their servants, agents, descendants, heirs, guardians etc. have no right, title, interest, or claim in it-in any manner whatsoever. The Plaintiff and Defendants No. 3 and 4 accept this.
m. This compromise is accepted by all parties being present before the Hon'ble Court. Having read the facts written in the compromise, and having considered them carefully, it is recorded without any force, threat, or coercion. It shall be accepted, approved, and binding to all parties.
n. The cost of this suit is to be borne by the respective parties themselves."
12. The bare reading of said terms of aforesaid compromise would clearly indicate that by way of settlement, the parties have agreed to perform their part of contract and the obligations have been cast upon the defendants to do certain acts, and so also upon the plaintiff who shall have to cancel the registered ATS when the defendant Nos. 1 and 2 and defendant Nos. 5 to 8 execute the necessary registered sale deed for part of suit property in favour of the plaintiff. By no stretch of imagination, for the performance of the said terms and conditions by the parties and to discharge their obligations, any decree passed can be termed as granting a mandatory injunction in favour of the plaintiff, as sought to be argued by Mr. Kavina, learned Senior Counsel.
13. It also needs to be noted here that if the aforesaid suit had been adjudicated by the Trial Court on its merit and any decree could have been passed in favour of the plaintiff, such decree can surely be executed within 12 years, as per Article 136 of the Limitation Act. Yet, it is sought to be argued on behalf the petitioners that in a case where parties to the suit agreed upon certain terms to be performed by them, and upon such terms any consent decree passed, it gets flavor of decree granting a mandatory injunction. Such an argument is not only fallacious but is also without any legal basis and requires outright rejection for following reasons.
13.1. The suit in question was filed seeking specific performance of ATS, wherein a compromise had taken place between the parties and consequently, the consent decree was passed by the Trial Court. Such suit can be considered as filed under Chapter II of Part II of the Act, 1963, whereas the mandatory injunction can be granted as per Section 39 of the Act, 1963 which falls under Chapter VIIII of Part III of the Act, 1963.
13.2. The mandatory injunction can be granted to prevent the breach of an obligation and also to compel the performance of the requisite acts. As per Section 41 of the Act, 1963, in certain cases, the Court cannot grant an injunction. Section 41 (e) & (h) of the Act, 1963 specifically prohibit the Court to grant an injunction to prevent the breach of the contract and when equally efficacious relief can certainly be obtained by any other usual mode of the proceeding. Section 39 & 41 of Act, 1963 reads as under, "Section - 39 - Mandatory injunctions. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
Section - 41. Injunction when refused.-- An injunction cannot be granted--
(a)to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b)to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c)to restrain any person from applying to any legislative body;
(d)to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e)to prevent the breach of a contract the performance of which would not be specifically enforced;
(f)to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g)to prevent a continuing breach in which the plaintiff has acquiesced;
(h)when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i)when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j)when the plaintiff has no personal interest in the matter."
13.3. Thus, conjoint reading of aforesaid provisions of Chapter VIII vis- à-vis the provisions enumerated in Chapter II of the Act, 1963 would clearly show that suit for performance of the contractual obligation cannot be considered as filed under Chapter VIII of the Act, 1963 and in such type of suit, no mandatory injunction can be granted by the Court.
14. At this juncture, I would like to refer the decision of the Delhi High Court in the case of Mujeeb Rehman V/s. Mohd Nabi & Ors., reported in 2017 SCC OnLine Del 11393. In the aforesaid decision, the Delhi High Court has visited the different chapters of the Act, 1963 and arrived at a conclusion that whenever any suit for specific performance is filed, the plaintiff cannot be permitted to pray for mandatory injunction, as the relief of mandatory injunction as provided in Section 39 of the Act, 1963 would not be available in a suit for specific performance, as barred under Section 41(h) of the Act, 1963. The relevant observations made by the Delhi High Court in the aforementioned case read thus:
"15. The question which arises for consideration is, whether relief in the nature of enforcement of the contractual obligations can be claimed by seeking a mandatory injunction.
16. The Specific Relief Act, as per preamble thereto, was enacted to define and amend the law relating to certain kinds of reliefs, and the specific reliefs dealt in Part II thereof are of "Recovering Possession of Property", "Specific Performance of Contracts", "Rectification of Instruments", "Rescission of Contracts", "Cancellation of Instruments", "Declaratory Decrees", in Chapters I to VI thereunder. Part III of the said Act titled "Preventive Relief" is divided into "Injunctions Generally" and "Perpetual Injunctions", in Chapters VII and VIII thereunder. Part I of the said Act titled "Preliminary", in Section 4 thereof provides that specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
17. It will thus be seen that both, the law relating to specific performance of contracts as well as the law relating to injunctions, are defined and contained in the same Specific Relief Act.
18. The law relating to specific performance of contracts in Chapter II under Part II of the Act prescribes, (a) the defences respecting suits for relief based on contract; (b) cases in which specific performance of contract is enforceable; (c) cases in which specific performance of contracts connected with trusts is enforceable; (d) contracts which are not specifically enforceable; (e) who may obtain specific performance; (f) personal bars to the relief of specific performance, etc.
19. Sections 36 & 37 of the Act in Chapter VII under Part III of the Act titled "Injunctions Generally", inter alia provides that preventive relief is granted by injunction, temporary or perpetual and that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit and that the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 39 in Chapter VIII titled "Perpetual Injunctions" under the said Part III is titled "Mandatory Injunctions" and is as under:
"39. Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
24. I have however wondered that if that was so, what was the need for the Legislature, while enacting the Specific Relief Act, to provide separately for specific performance of contracts and mandatory injunctions.
28. The Legislature, while enacting the same Act, cannot be assumed to have created the anomaly aforesaid. The only way, in my opinion, to interpret the aforesaid two Chapters of the Specific Relief Act, by applying the principles of interpretation of statutes of "a construction giving rise to anomalies should be avoided" and "avoiding uncertainty and friction in the system which the statute purports to regulate", is by holding that the obligations, to prevent breach whereof performance of certain acts can be compelled by issuing a decree for mandatory injunction, are obligations in law, other than those under a contract. If the obligation is under a contract and performance of certain acts which the defendant has undertaken to do under the contract, has to be compelled, the remedy to be invoked would have to be under the Chapter relating to specific performance of contracts and not under the Chapter of mandatory injunction.
29. This becomes clear from Section 41 supra, clause (e) whereof provides that injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced and also from clause (h) thereof which provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
30. The same Act having provided the efficacious relief of performance of certain acts undertaken to be done under a contract, by suing for specific performance of contract, clause (h) of Section 41 would bar the grant of mandatory injunction to compel performance of act undertaken to be done under a contract. Clause (e) of Section 41 also bars specific performance of a contract which is impermissible under the Chapter of the Specific Relief Act pertaining to specific performance of contracts, by grant of mandatory injunction.
32. I thus conclude, that for seeking performance of contractual acts of which the defendant is in breach of, the relief of mandatory injunction cannot be granted."
(Emphasis supplied)
15. Since the provisions of the Act, 1963 do not allow the Court to grant the relief of mandatory injunction in a suit for specific performance of contract and/or breach of obligation of terms of contract, as the case may be, it is farfetched to assume that by way of agreement between the parties, any consent decree passed by the Court in a suit for specific performance, it can be treated as a decree granting a mandatory injunction. According to me, such a contention has no legs to stand at least in the eye of law.
16. It is settled law that what cannot be done directly, cannot be done indirectly. In the case on hand, when the suit itself could not have been maintained for seeking relief of mandatory injunction and as such, it was filed seeking specific performance of ATS, any agreement arrived between the parties during course of trial of the suit, upon which the consent decree was passed which is sought to be executed by way of the execution in question, can never be treated as the decree passed by the Court granting a mandatory injunction.
17. Prima facie, it appears that the petitioners-defendants/judgment debtors are trying to frustrate the execution of consent decree by any means, inasmuch as the point which was neither pressed before the Executing Court nor pleaded in this petition, still it was argued by citing several authorities that, it being a pure question of law, this Court should accept such submission and accordingly reject the execution petition by holding it as time barred.
18. The reliance placed upon few decisions of the Hon'ble Apex Court to support the contention of the petitioners that in execution proceedings, Section 5 of the Limitation Act is not applicable and if the execution petition is time-barred, as per Section 3 of the Limitation Act read with Order 21 of the CPC, such execution petitioner requires to be rejected. There cannot be any dispute on the proposition of law that if the execution petition is time-barred and filed beyond period of limitation as prescribed under the Limitation Act, the decree cannot be enforceable by way of such execution. In such a situation, the Executing Court has no other option left but to reject such time barred execution petition.
19. So far as the two decisions of other High Courts upon which reliance has been placed are concerned, neither had facts similar to the case at hand nor its ratio applicable to the facts of present case.
19.1. In the case of M. J. Sarojama (supra) (Andhra Pradesh High Court), the suit itself was filed seeking mandatory injunction, wherein there was a compromise between the parties and a consent decree was drawn. In such factual scenario, though agreement was entered into between the parties to do certain acts and having not done so by the judgment debtor, and when the execution petition filed beyond a period of 3 years from the date of passing of the decree, it was observed that in view of Article 135 of Limitation Act, the execution petition was barred by time and accordingly rejected.
19.2. Likewise, in the case of Sesu Naika (supra) (Kerala High Court), again the suit was filed seeking mandatory injunction and there was a compromise entered into between the parties and consent decree was drawn which sought to be executed beyond a period of 3 years and in light of that fact, the Kerala High Court held that since it was filed beyond a period of 3 years, it requires to be rejected. It is observed in Paragraph 6 of said decision, the relevant read thus:
".................The prayer for mandatory injunction is intended by the petitioner. The petitioner prays for it and the court awards it in a compromise decree on a joint request of the parties themselves. It is clear that where the parties agree to a future mode of conduct either by doing an act or by refraining to do some act and obtain a decree in those terms, this may in appropriate cases, amount to self- inducted injunction against one's self. In a case of this nature the decree must be correlated to the relief claimed in the plaint. Thus there cannot be any real difference in an injunction granted by the court after adjudication of the rights and a self-invited injunction under a compromise decree................"
(Emphasis supplied)
19.3 It is evident from said observation that to treat the consent decree as the decree granting a mandatory injunction, the nature of the suit and the prayers made in it, requires to be taken note by the Court.
20. In view of the aforesaid, I am not at all impressed by any of the submissions of Mr. Kavina, learned Senior Counsel.
CONCLUSION:
21. Thus, taking note of the aforesaid facts and circumstances of the present case and having discussed the law as aforesaid, I am of the considered view that consent decree in question cannot be treated or termed as decree granting a mandatory injunction as sought to be argued by Mr. Kavina, learned Senior Counsel for the petitioners; rather, according to my considered view, the aforesaid suit having been filed for seeking specific performance of a registered ATS, wherein the consent decree passed must be considered as a decree which can be executed as per Article 136 of the Limitation Act. Accordingly, once the consent decree is not considered to be a decree granting a mandatory injunction, its execution would not be governed by the period of limitation as prescribed under Article 135 of Limitation Act as sought to be argued on behalf of the petitioners-defendants.
22. In view of the foregoing observations, discussion and reasons, I do not find any merit in the sole submission canvassed by Mr. Kavina, learned Senior Counsel for the petitioners. Consequently, the present petition is devoid of any merit and deserves to be rejected. It is, therefore, rejected in limine. There shall be no order as to costs.
