Jharkhand High Court
Amar Kushwaha vs Smt. Moti Sundar Devi on 10 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C. M. P. No. 665 of 2022
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Amar Kushwaha ... .... Petitioner
Versus
1. Smt. Moti Sundar Devi
2. Abhimanyu Kumar
3. Abhay Kumar
4. Amarjeet Kumar ... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : M/s Sudhir Kr. Sharma & R.P. Singh, Advocates
For the Opp. Parties :
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Oral Order
02 / Dated : 10.11.2022
1. The instant civil misc. petition has been filed under Article 227 of the
Constitution of India for quashing the order dated 30.07.2022 passed by the
Civil Judge (Sr. Div.)-II, Dhanbad in M.C.A. Case No. 321 of 2022 (Civil
Execution Case No. 22 of 2022) whereby the petition dated 16.07.2022 under
Section 47 of C.P.C., 1908 has been dismissed. Civil Execution Case No. 22 of
2022 arises out of Title Suit No. 186 of 2005 which was filed by Krishna Prasad
original plaintiff and the present petitioner- Amar Kushwaha was the defendant
in the suit. The suit was filed for declaration of title and confirmation of
possession of the schedule property and also for a decree for permanent
injunction.
2. The suit ended in a compromise and the decree was drawn on
02.03.2007. The petition for execution was filed on 07.01.2022 after a lapse of
14 years.
3. The petitioner challenged the execution proceeding under Section 47
of C.P.C. mainly on the ground of limitation and that with respect to the same
relief Title Suit No. 300 of 2015 had been filed by the plaintiff decree holder in
which it had been pleaded that he had allowed the defendant to use and stay over
the schedule land till the payment of full and final consideration money.
4. The petition was rejected by the Court below principally on the
ground that under Article 136 of the Limitation Act for execution of decree of
perpetual prohibitory injunction no limitation period shall apply. With regard to
Title (Ejectment) Suit No. 300 of 2015 learned Court below rejected the plea
relying on the ratio decided in AIR 2009 Punjab and Haryana188.
5. Learned counsel for the petitioner submits that the ratio of the said
judgment relied upon by the Court below does not apply to the facts and
circumstances of the present case. The ratio of the judgment is that the decree
for specific performance of contract and injunction restraining judgment debtor
from forcible dispossession. The decree holder cannot be required to file
another suit as he had already obtained a decree in his favour.
6. The matter involves execution of compromise decree passed in T.S.
186/2005 against the judgment debtor-Amar Kushwaha (petitioner). On the
objection filed under section 47 of the C.P.C., Miscellaneous Civil case
no.321/2022 was registered. The objection filed under section 47 has been
rejected, against which the present petition has been preferred.
7. The learned court below has rightly held that that there was no
limitation prescribed under the Limitation Act for execution of decree of
perpetual prohibitory injunction. The second plea of pendency of title ejectment
suit no.300/15 will be of no avail to the petitioner, as the execution proceeding
cannot be stayed and the decree holder cannot be restrained from prosecuting
other legal remedies against the same party for a different relief. If at all, the
matter substantially in issue, is directly and substantially in issue in the pending
suit between the same parties, petitioner is at liberty to raise appropriate plea in
that suit. This will however be not available to stay the execution proceeding.
The civil miscellaneous petition stands dismissed.
(Gautam Kumar Choudhary, J.)
AKT
