Madhya Pradesh High Court
Gopal vs Ratan Shankar on 9 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 MP. No. 2281 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 9th OF MAY, 2025
MISC. PETITION No. 2281 of 2025
GOPAL AND OTHERS
Versus
RATAN SHANKAR
Appearance:
Shri Mahesh Goyal - Advocate for petitioners.
ORDER
This Misc. Petition, under Article 227 of Constitution of India, has been
filed seeking the following relief(s):
i) The Order dated 05.04.2025 passed in Execution Proceedings
No. 11/2019 EXA may be quashed/set aside and the objections raised
by the Petitioners regarding maintainability of execution proceedings
may be allowed and the execution proceedings may be dismissed as
not maintainable.
ii) To grant any other relief that this Hon'ble Court deem fit.
2. It is submitted by counsel for petitioners that by judgment and decree
dated 22.12.1979, it was held that plaintiff - Ravishankar Mudgal is the owner
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of Khasra No.742/5 and the defendants should dismantle the construction
which they have raised within a period of six months and a permanent
injunction was also issued thereby restraining the defendants from interfering
with the peaceful possession of the plaintiff.
3. The decree was fully satisfied and accordingly, the execution
proceedings were dropped on 20.12.2017. Thereafter, the respondent who is the
son of plaintiff who had filed Civil No.113-A/1969 which was decreed by
judgment and decree dated 22.12.1979 filed a suit for declaration of title and
possession in respect of the same land i.e. Survey No.742/5. A counter-claim
was also filed by petitioners. The suit filed by the respondent as well as the
counter-claim filed by petitioners were dismissed by judgment and decree dated
20.10.2023 passed by II Additional Judge to the Court of I Civil Judge, Junior
Division, Sheopur, District Sheopur (M.P.) in RCS A No.110/2018 by holding
that the dispute between the parties has already been adjudicated and a
permanent injunction has also been granted, therefore, the suit is barred by the
principle of res judicata and accordingly it was held that in case if petitioners
have violated the decree for permanent injunction, then respondent/plaintiff is
free to take legal action under the provisions of law.
4. So far as the counter-claim of petitioners was concerned, it was held that
petitioners have failed to prove that they are the owner of Survey No.742/7
Min-1. Thereafter, respondent has filed a fresh execution proceedings which
were objected by petitioners, however, by order dated 05.04.2025, the objection
raised by petitioners with regard to execution of decree passed in Civil Suit
No.113-A/69 has been rejected.
5. Challenging the impugned order dated 05.04.2025, it is submitted by
counsel for petitioners that the decree for declaration of title, removal of
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construction and permanent injunction was passed on 22.12.1979 and thereafter
execution proceedings were dropped by holding that decree has been satisfied.
Therefore, now, initiation of fresh proceedings for execution of decree passed
in Civil Suit No.113-A/69 is bad in law. It is further submitted that even
otherwise, the decree passed in Civil Suit No.113-A/69 cannot be executed
after 56 years of decree.
6. Heard learned counsel for petitioner.
7. The moot question for consideration is as to whether any limitation is
provided for execution of a decree for permanent injunction?
8. Article 136 of Limitation Act provides that an application for
enforcement or execution of a decree granting a perpetual injunction shall not
be subject to any period of limitation.
9. The Supreme Court in the case of Bhudev Mallick Alias Bhudeb
Mallick & Anr. Vs. Ranajit Ghoshal & Ors. [Civil Appeal No.2248 of 2025
- order dated 17.01.2025 and reported in 2025 SCC OnLine SC 360] has held
as under:
"36. It is well settled that a decree of permanent injunction is
executable with the aid of the provisions contained in Order XXI
Rule 32 of the Code referred to above, and any act in violation or
breach of decree of permanent injunction is a continuing
disobedience entailing penal consequences.
37. In Jai Dayal And Others v. Krishan Lal Garg and Another
reported in (1996) 11 SCC 588, this Court considered the effect of
decree of permanent injunction as well as the scope of provisions of
Order 21 Rule 32 of the Code and held as under:-
"6. It is contended that the High Court has proceeded on
the premise that the rights of parties are required to be
adjudicated under Section 22 of the Easements Act. The view
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of the High Court is clearly in error. It is seen that once the
decree of perpetual injunction and mandatory injunction has
become final, the judgment-debtor is required to obey the
decree. In whatever form he obstructs, it is liable to removal
for violation and the natural consequence is the execution
proceedings under Order XXI, Rule 32, CPC which reads as
under:
"32.(3) Where any attachment under sub-rule (1) or sub-
rule (2) has remained in force for six months if the
judgment-debtor has not obeyed the decree, if the
decree-holder has applied to have the attached property
sold, such property may be sold; out of the proceeds the
Court may award to the decree-holder such
compensation as it thinks fit, and shall pay the balance,
if any, to the judgmentdebtor on his application.
(4) Where the judgment-debtor has obeyed the decree
and paid all costs of executing the same which he is
bound to pay, or where, at the end of six months from
the date of the attachment, no application to have the
property sold has been made, or if made has been
refused, the attachment shall cease."
7. In this case, since the attachment was made for
enforcement of the perpetual injunction and mandatory
injunction, the decree is required to be complied with. In case
he did not obey the injunction under Clause (1) of Order 32,
the judgment-debtor is liable to detention in the civil prison
and also to proceed against the property under attachment."
(Emphasis supplied)
38. The High Court of Rajasthan in Maga Ram And Another v.
Kana Ram And Others reported in AIR 1993 Rajasthan 208, held as
under :
"3. A perusal of the decree under execution shows that it
was for mandatory as well as for prohibitory injunction. It
stood satisfied so far it concerned with mandatory part of the
injunction by the removal of the encroachment existing on the
disputed land on the date on which it was passed. The decree
in respect of prohibitory injunction was subsisting even after
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the disposal of first and second execution applications. The
third execution application has been moved for the execution
of the decree in respect of the prohibitory injunction. It is
perfectly executable under O. XXI, R. 32, C.P.C.
4. There is also no substance in the second objection
relating to limitation. Art. 136, Limitation Act, deals with the
limitation for execution of decrees other than a decree
granting mandatory injunction. The limitation is 12 years
from the date the decree becomes enforceable. The decree for
prohibitory injunction become enforceable when the
judgement debtors made fresh encroachment on the disputed
land. The decree under execution itself was passed on
September 20, 1983. As such the third execution application
was well within limitation."
(Emphasis supplied)
39. The High Court of Bombay in the case of Shri Benedito (Betty)
Dias v. Armando Benedita Fernandes reported in 2017(4) AIR
Bom. R 381, held as under:-
"12. The decision of the Kerala High Court, in the case of
M.G. Simon (supra), cannot take the case of the petitioners
any further and in fact, would assist the respondents. In that
case also, it has been held that an application for
enforcement of the decree granting prohibitory injunction
shall not be subject to any period of limitation and where
there is a composite decree, granting mandatory and
prohibitory injunction, one part is subjected to limitation
period of three years, whereas the other is not subjected to
any period of limitation. The petitioner can enforce the
prohibitory injunction, whenever violation of that part takes
place.
13. In the case of Jai Dayal (supra), the Hon'ble Supreme
Court has held that once the decree of perpetual and
mandatory injunction has become final, the judgment debtor
is required to obey the decree and a party cannot and
should not, by his action be permitted to drive the decree
holder to file a second suit. It has been inter-alia held that
non-compliance is a continuing disobedience in respect of
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which a separate/fresh suit is barred under Section 47 of the
CPC. Thus, in my considered view, the contention based on
the execution being barred by limitation, cannot be
accepted." (Emphasis supplied)
40. The High Court of Punjab and Haryana in the case of Dilbagh
Singh and Others v. Harpal Singh Alias Harpal Singh Chela and
Others reported in 2020 Supreme (P&H) 944, has held as under:-
"6. Although learned counsel for the petitioners has laid
much stress on the fact that to seek execution of the decree,
qua the restoration of the possession in his favour, the
decree holder was supposed to plead specifically as to when
and in what manner he has been dispossessed. This Court
finds this argument to be noted only to be rejected. The
provisions of sub Rule (5) Rule 32 of Order 21 CPC do not
prescribe any such condition. Rather, Order 21 Rule 32 CPC
prescribes that for execution of a decree if any act is
required to be done by the judgment debtor, the Executing
Court can order that such an act be done by the judgment
debtor; as claimed. Sub Rule (5) Rule 32 of Order 21 CPC
has been interpreted by the Supreme Court in various
judgments viz. "Samee Khan vs. Bindu Khan, 1998(4)
RCR(Civil) 125 (SC)" to mean that in an execution
proceedings of a decree for injunction, if it is found that the
decree holder has been dispossessed after the date of decree,
the restoration of possession can also be ordered by the
Executing Court. Hence, it is no more res-integra that in
execution of a decree for injunction, even restoration of
possession can be ordered by the Executing Court. This view
has also been taken by this court in 'Kapoor Singh vs. Om
Parkash, 2009(4) PLR 178'. Hence, no fault can be found,
per-se, with the action of the Executing Court in issuing
warrants of possession in the execution proceedings."
(Emphasis supplied)
41. Having regard to the dictum of law as laid in the aforesaid
decisions, there is no force in the argument of the learned counsel
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appearing for the appellants that the execution case could not have
been instituted by the respondents herein after a period of 40 years
from the date of passing of the decree in the original Title Suit. The
decree for permanent injunction can be enforced or becomes
enforceable when the judgment debtor tries to disturb the peaceful
possession of the decree holder or tries to dispossess the decree
holder in some manner or the other or creates obstruction in the
peaceful enjoyment of the property over which he has a declaration
of title from the civil court in the form of a decree.
42. In the aforesaid context, we may refer to Article 136 of the
Limitation Act, 1963 which reads thus:-
When the decree or order becomes
enforceable or where the decree or
any subsequent order directs any
For the payment of money or the delivery
execution of any Twelve of any property to be made at a
136. certain date of at recurring periods,
decree (other years.
than a decree when default in making the
granting a payment or delivery in respect of
mandatory which execution is sought, takes
injunction) or place:
order of any
Provided that an application for the
civil court. enforcement or execution of a
decree granting a perpetual
injunction shall not be subject to
any period of limitation.
(Emphasis supplied)
43. The proviso to Section 136 of the Limitation Act referred to
above makes it further clear that for the enforcement or execution of
a decree granting a perpetual injunction shall not be subject to any
period of limitation.
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46. Each breach of injunction is independent and actionable in law
making the judgment-debtor answerable. Where there are
successive breaches of decree, the judgment-debtor can be dealt
with on every such breach and the doctrine of res judicata has no
application. The court is expected to take strict view and stern
action. (See : Code of Civil Procedure, 1908 by Justice C.K.
Thakker, 2009 Edn.)"
10. Thus, it is clear that where the decree for permanent injunction has been
granted, then the same can be enforced by initiating execution proceedings and
no limitation is provided for execution of decree for permanent injunction.
Furthermore, the counter-claim of petitioners has also been dismissed.
11. Under these circumstances, this Court is of considered opinion that the
executing court did not commit any mistake by rejecting the application filed
by petitioners. Accordingly, order dated 05.04.2025 passed by I Civil Judge,
Junior Division, Sheopur (M.P.) in Execution Proceedings No.11/2019 EXA is
hereby affirmed.
12. Petition fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
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