LATHE EDUCATION SOCIETY vs RAJARAM S/O VIDYADHAR DHAVATE

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 7 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 102722 OF 2018 (GM-CPC)
BETWEEN:

LATHE EDUCATION SOCIETY,
BEDAKIHAL BRANCH,
REPRESENTED BY ITS PRESENT CHAIRMAN,
SRI. INDRAJEET PASAGOUDA PATIL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: BEDAKIHAL-591214, TQ: CHIKKODI,
DIST: BELAGAVI.
… PETITIONER
(BY SRI. CHETAN MUNNOLI, ADVOCATE)

AND:

RAJARAM S/O VIDYADHAR DHAVATE,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: BEDAKIHAL-591214,
TQ: CHIKKODI, DIST: BELAGAVI.
… RESPONDENT
(BY SRI. PRUTHVI K.S., ADVOCATE FOR C/RESPONDENT)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED ORDER DATED 01.03.2018 PASSED IN EP
NO.50/2014 PENDING ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC, CHIKKODI, AT CHIKKODI, VIDE ANNEXURE-A & ETC.,

Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
KARNATAKA

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

1. The captioned writ petition is filed by the judgment-
debtor assailing the order passed by the Executing Court on I.A.
No.II filed under Section 151 of the Code of Civil Procedure,
1908 (for short ‘CPC’). By the said application, the petitioner
sought dismissal of the execution petition on the ground that it
was barred by limitation under Article 135 of the Limitation Act,
1963. The Executing Court, however, proceeded on the premise
that the execution petition was instituted to enforce a decree for
perpetual injunction and, therefore, applied Article 136 of the
Limitation Act, 1963. On that reasoning, the Executing Court
held that the execution petition was within the prescribed period
of limitation and accordingly rejected I.A. No.II.

2. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the respondent.
Perused the material placed on record, more particularly the
judgment and decree passed in O.S. No.80/1988 produced at
Annexure-D.

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3. In order to examine the correctness of the finding
recorded by the Executing Court, it would be necessary to refer
to the operative portion of the decree passed in O.S.
No.80/1988, which reads thus:
“ii) Mode in which the assistant of Court is sought
A Court Commissioner be appointed to remove the
PQ wall and the vacant possession of the same in
pursuance of the terms of Decree may kindly be
ordered to delivered through process of Court
Recovering the costs of suit, costs of the R.A. and
costs of this E. P. be recovered from the J.Dr. by
attachment and sale of movable and immovable
properties of J.Dr. or/and by arrest and detention of
Judgment Debtor in prison.
Any other that deems fit and proper be granted in
the interest of justice and equity.”
(emphasis supplied)

4. A plain reading of the operative portion of the decree
leaves no manner of doubt that the decree is not one merely
granting a perpetual injunction. On the contrary, the decree
directs removal of the ‘PQ’ wall through the process of the Court
by appointment of a Court Commissioner and delivery of vacant

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possession. The decree, therefore, substantially partakes the
character of a decree for mandatory injunction. The Executing
Court, before deciding the question of limitation, was required to
examine the true nature of the decree. Unfortunately, the decree
itself has not been adverted to, resulting in an erroneous
application of Article 136 of the Limitation Act, 1963.

5. Once it is held that the decree is one for mandatory
injunction, the limitation prescribed under Article 135 of the
Limitation Act, 1963 would squarely apply. Article 135 prescribes
a period of three years for execution of a decree granting a
mandatory injunction, whereas Article 136, which provides a
period of twelve years, excludes decrees granting mandatory
injunction.

6. The distinction consciously drawn by the Legislature
between Articles 135 and 136 of the Limitation Act, 1963 is
neither accidental nor without purpose. A decree for mandatory
injunction commands the judgment-debtor to perform a positive
act or to undo a completed act, and the efficacy of such a decree
is intrinsically dependent upon its prompt enforcement. The
subject-matter of a mandatory injunction is ordinarily susceptible

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to change with the passage of time, and any prolonged inaction
on the part of the decree-holder may render execution
impracticable, inequitable or even impossible owing to
supervening circumstances, altered factual conditions,
intervention of third-party rights, or changes in the character of
the property.

7. Significantly, even at the stage of institution of a
suit, the equitable relief of mandatory injunction is not intended
to aid a litigant who has slept over his rights. A party seeking a
decree for mandatory injunction is expected to approach the Civil
Court with utmost promptitude and at the earliest point of time
immediately upon the accrual of the cause of action, for delay or
acquiescence may itself constitute a valid ground to decline such
discretionary relief. The legislative policy embodied in Article 135
is in complete harmony with this well-settled equitable principle.
If expedition is expected while seeking the relief itself, the same
degree of diligence is equally expected after the decree is
granted. A decree-holder who has secured a mandatory
injunction cannot be permitted to keep the decree unexecuted
indefinitely and thereafter invoke the coercive machinery of the

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Court after an inordinate lapse of time. It is for this reason that
Article 135 prescribes a comparatively shorter period of three
years for enforcing a decree granting mandatory injunction. A
decree for perpetual injunction, on the other hand, merely
declares and protects an existing legal or proprietary right by
restraining the judgment-debtor from committing a prohibited
act. The obligation flowing from such a decree is continuing in
nature and subsists so long as the right declared by the Court
continues to exist. The breach of a perpetual injunction is
capable of recurring, and the necessity to enforce such a decree
may arise at any point during its subsistence. Recognising this
fundamental distinction in the nature and character of the two
classes of decrees, the Legislature has consciously excluded
decrees granting mandatory injunction from the ambit of Article
136 and subjected them to the special limitation prescribed
under Article 135. The legislative intent is, therefore, manifest to
insist upon expedition both in seeking and in enforcing a decree
for mandatory injunction, while allowing a longer period for
execution of decrees protecting continuing rights by way of
perpetual injunction. Any interpretation obliterating this
legislative distinction would render Article 135 otiose and defeat

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the very object for which the Legislature carved out a separate
and distinct period of limitation for execution of decrees granting
mandatory injunction.

8. In the case on hand, the decree came to be passed
on 20.04.1996. The execution petition, however, was instituted
only in the year 2014, indisputably beyond the period of three
years prescribed under Article 135 of the Limitation Act, 1963.
The execution petition was, therefore, clearly barred by
limitation and liable to be dismissed on that ground alone.

9. The finding recorded by the Executing Court that
Article 136 governs the present case is thus legally
unsustainable. The impugned order suffers from a patent error
apparent on the face of the record and is contrary to the
statutory scheme embodied under Articles 135 and 136 of the
Limitation Act, 1963.

10. For the foregoing reasons, this Court proceeds to
pass the following:
ORDER
allowed
(i) The writ petition is .

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(ii) The order dated 01.03.2018 passed on I.A. No.II
in E.P. No.50/2014 on the file of the Principal
Civil Judge and JMFC, Chikkodi, vide Annexure-
A, is hereby quashed and set aside.
Consequently, I.A. No.II stands allowed.
(iii) As a consequence, Execution Petition
No.50/2014 stands dismissed as being barred
by limitation.



Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE


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