Consent Decree In Specific Performance Suit Is Not A Mandatory Injunction; Limitation For Execution Is 12 Years Under Article 136: Gujarat High Court

"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." Gujarat High Court, in a significant judgment, has clarified that a consent decree passed in a suit for specific performance of an agreement to sell cannot be equated to a decree for a mandatory injunction.

A bench of Justice Maulik J. Shelat observed that such decrees are governed by the 12-year limitation period under Article 136 of the Limitation Act, 1963, for the purpose of execution, rather than the 3-year period prescribed for mandatory injunctions under Article 135.

The court's ruling came while dismissing a challenge to an execution proceeding where the judgment debtors argued that the execution was time-barred. The bench emphasized that the nature of the suit—specifically whether it falls under the provisions for specific performance or those for injunctive relief—determines the applicable limitation period for enforcing the resulting decree.

The dispute arose from a 2009 suit for the specific performance of a registered Agreement to Sell (ATS) dated September 5, 2006. During the pendency of the litigation, the parties entered into a compromise, leading the Trial Court to pass a consent decree on April 13, 2015. When the defendants failed to act upon the decree, the plaintiff filed an execution petition in 2023, which was challenged by the defendants as being barred by limitation.

The primary question before the court was whether a consent decree drawn in a suit for specific performance can be characterized as a decree "granting a mandatory injunction." Consequently, the court had to determine if the execution petition was governed by the three-year limitation period under Article 135 or the twelve-year period under Article 136 of the Limitation Act.

Statutory Distinction Between Specific Performance And Mandatory Injunction

The court began by examining the structure of the Specific Relief Act, 1963, noting that specific performance and mandatory injunctions are governed by entirely different chapters. While specific performance of a contract is dealt with under Chapter II of Part II, mandatory injunctions fall under Section 39 within Chapter VIII of Part III of the Act.

The bench observed that a suit for the performance of a contractual obligation cannot be considered as filed under the chapter relating to injunctions. The court held that if a suit for specific performance is adjudicated on merits, the resulting decree is executable within 12 years under Article 136, and this nature does not change simply because the decree was passed through a compromise.

"Specific performance falls under Chapter II of Part II of the Act, 1963, whereas the mandatory injunction can be granted as per Section 39... which falls under Chapter VIII. Conjoint reading of aforesaid provisions would clearly show that suit for performance of the contractual obligation cannot be considered as filed under Chapter VIII."

The Principle of Indirect Action

The court rejected the petitioners' argument that the terms of the compromise, which required the parties to perform certain acts, gave the decree the "flavour" of a mandatory injunction. Justice Shelat invoked the settled legal maxim that what cannot be done directly cannot be done indirectly.

Since a plaintiff in a specific performance suit is generally barred under Section 41(h) from seeking an injunction when an equally efficacious relief (specific performance) is available, the court reasoned that a consent decree in such a suit cannot be re-categorized as an injunction to bypass standard limitation rules.

"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... can never be treated as the decree passed by the Court granting a mandatory injunction."

Applicability Of Article 136 Over Article 135

The court clarified the distinct scopes of Articles 135 and 136 of the Limitation Act. It noted that Article 135 specifically targets decrees for mandatory injunctions with a three-year window. However, because the underlying suit was for specific performance, the "consent decree passed must be considered as a decree which can be executed as per Article 136," which provides a twelve-year period.

The bench scrutinized the terms of the compromise, which involved the execution of sale deeds and cancellation of previous agreements. It held that these obligations were part of the performance of a contract and did not satisfy the legal definition of an injunction intended to prevent a breach of an obligation not arising from a contract.

"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."

Distinguishing Precedents On Mandatory Injunctions

Addressing the citations provided by the petitioners, including decisions from the Andhra Pradesh and Kerala High Courts, the bench noted that those cases involved suits that were originally filed for mandatory injunctions. In such instances, a compromise decree would naturally retain the character of an injunction. However, the present case was fundamentally different as the prayer in the plaint was for specific performance.

The court further observed that the petitioners appeared to be raising the limitation argument as an afterthought to frustrate the execution of a decree they had consented to years prior. It noted that the specific point regarding Article 135 had not been pressed before the Executing Court.

The High Court concluded that the execution petition filed in 2023 for the 2015 decree was well within the twelve-year limitation period. Finding no merit in the contention that the decree had become unenforceable after three years, the court dismissed the Special Civil Application in limine.

Date of Decision: 06 July 2026