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Wednesday, February 22, 2017

executability of decree for permanent injunction against the legal representatives of judgment- debtor. = Resultantly, we allow the appeals, set aside the impugned order passed by the High Court and hold that the direction issued by the executing court that an undertaking be furnished by the legal representatives to abide by the decree is proper, failing which the executing court would proceed in a permissible mode in accordance with law to enforce the decree under the provisions of Order XXI Rule 32 CPC.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 3007-3008  OF 2017
               [Arising out of SLP [C] Nos. 1483-1484 of 2015]


Prabhakara Adiga                                   … Appellant

Vs.

Gowri & Ors.                                       … Respondents


                               J U D G M E N T


ARUN MISHRA, J.

1.    Leave granted.

2.    Singular question involved in the matter is  executability  of  decree
for permanent injunction against  the  legal  representatives  of  judgment-
debtor.
3.    A suit  was  filed  by  the  appellant  registered  as  Original  Suit
No.83/2007 in the Court  of  II  Additional  Civil  Judge,  Kundapura,  with
respect to immovable property described in Schedule ‘A’ of the  plaint.  The
plaintiff got converted the land for non-agricultural/residential  purposes.
The plaintiff was in possession and enjoyment of the property and  defendant
had no concern with the same. However, he tried to remove  and  destroy  the
wooden fence and made  an  effort  to  forcibly  dispossess  the  plaintiff.
Hence the suit was  filed.  The  defendant  had  denied  the  averments  and
contended that there was no division  of  the  land  and  had  asserted  his
ownership and possession.    The conversion order of land was also illegal.
4.    It was found on the basis of the registered partition  deed  that  the
suit schedule  property  was  allotted  to  the  plaintiff  and  he  was  in
possession thereof. The defendant on partition in his own  family  had  been
allotted 1.58 acres and defendant has sold 1.68 acres of  land,  though  the
land allotted to him was only 1.58 acres in Survey No.32/5.   Plaintiff  was
found to be in possession of Schedule ‘A’ property on the date of the  suit.
It was held that the defendant had  no  right,  title  or  interest  in  the
disputed land.   Accordingly,  the  suit  of  the  plaintiff  for  permanent
injunction was decreed vide judgment and decree dated 13.9.2012.
5.    After suffering decree for  permanent  injunction  on  13.9.2012,  the
judgment-debtor Divira Bolu died on 10.12.2012. The heirs of  the  judgment-
debtor in  violation  of  the  decree  for  permanent  injunction  tried  to
forcibly dispossess the decree-holder from Schedule ‘A’ property. Thus,  the
decree-holder filed execution petition within two years of  the  passing  of
the decree.  It was resisted by the heirs of judgment-debtor on  the  ground
that they were not bound by the decree for permanent injunction.  The  force
of decree  lapsed  with  the  death  of  judgment-debtor.   The  decree  was
incapable of enforcement against them  as  the  judgment  debtor  had  died.
Reliance was placed  on  the  legal  maxim  “actio  personalis  moritur  cum
persona”. The executing court held that the heirs  of  judgment-debtor  were
bound by the decree and directed them  to  furnish  an  undertaking  to  the
effect that they would not  disobey  the  decree  of  the  court.  Aggrieved
thereby, the respondents preferred a writ petition  in  the  High  Court  of
Karnataka at Bangalore which has been allowed by  the  impugned  order.  The
High Court has held that the  decree  for  permanent  injunction  cannot  be
enforced against the legal heirs of judgment-debtor as injunction  does  not
travel with land.

6.    It was submitted by learned counsel representing  the  appellant  that
the High Court has  erred  in  law  in  holding  the  decree  for  permanent
injunction to be inexecutable as against the respondents/heirs of  judgment-
debtor. He has relied upon section 50, section 146, Order 21 Rule 16,  Order
21 Rule 32 and section 47 CPC in order to take home the point. On the  other
hand, learned counsel appearing  on  behalf  of  the  respondents  has  also
referred  to  few  decisions  to  contend  that  the  decree  for  permanent
injunction does not go  with  the  land.  Thus,  the  same  is  inexecutable
against the legal heirs of the judgment-debtor.
7.    It is apparent in the instant case that on the basis of the  title  of
the plaintiff over the disputed land, decree for  permanent  injunction  had
been granted. It was found that the defendant had sold  the  property  which
had fallen to his share in the partition of his own family.  It was held  in
the suit that the defendant was not the owner of the disputed  property  and
it belonged to the plaintiff.  In  execution  proceedings  filed  within  24
months of decree, a question arose  whether  after  the  death  of  judgment
debtor, his heirs could start interference in  the  property  and  plaintiff
was obliged to file another suit for injuncting them or  could  execute  the
decree for permanent injunction which was granted in his favour  as  against
the heirs of judgment-debtor.
8.    Section 50 of the CPC has been referred to and the same  is  extracted
hereunder :
      “50. Legal representative— (1) Where  a  judgment-debtor  dies  before
the decree has been fully satisfied, the holder of the decree may  apply  to
the  Court  which  passed  it  to  execute  the  same  against   the   legal
representative of the deceased.
           (2)  Where  the   decree   is   executed   against   such   legal
representative, he shall be liable only to the extent  of  the  property  of
the deceased which has come to his hands and has not been duly disposed  of;
and, for the purpose of ascertaining such  liability,  the  Court  executing
the decree may, of its own motion or  on  the  application  of  the  decree-
holder, compel such legal representative to  produce  such  accounts  as  it
thinks fit.”

9.    Section 146 CPC has also been referred to and the same is extracted

hereinbelow :

      “146. Proceedings by or against  representatives—  Save  as  otherwise
provided by this Code or by any law for the time being in force,  where  any
proceeding may be taken or application made by or against  any  person  then
the proceeding may be taken or the application may be  made  by  or  against
any person claiming under him.”

10    The provisions of Order XXI Rule 16 and Order XXI Rule 32 of CPC  have
also been referred to and they are also extracted below :
      “16. Application for  execution  by  transferee  of  decree—  Where  a
decree or, if a decree has been passed jointly in  favour  of  two  or  more
persons, the interest of any decree-holder in the decree in  transferred  by
assignment in writing or by operation of law, the transferee may  apply  for
execution of the decree to the Court which passed it; and the decree may  be
executed in the same manner and subject to the same  conditions  as  if  the
application were made by such decree-holder :
      Provided that where the decree, or such  interest  as  aforesaid,  has
been transferred by assignment, notice of such application  shall  be  given
to the transferor and the judgment-debtor,  and  the  decree  shall  not  be
executed until the  Court  has  heard  their  objections  (if  any)  to  its
execution :
      Provided also that, where a decree for the payment  of  money  against
two or more persons has been transferred to one of them,  it  shall  not  be
executed against the others.
     [Explanation.—Nothing in this  rule  shall  affect  the  provisions  of
section 146, and a transferee of  rights  in  the  property,  which  is  the
subject matter of the suit, may apply for execution of the decree without  a
separate assignment of the decree as required by this rule.]”


     “32. Decree  for  specific  performance  for  restitution  of  conjugal
rights or for an injunction.— (1) Where the party against whom a decree  for
the specific performance of a  contract,  or  for  restitution  of  conjugal
rights, or for an injunction, has been passed, has  had  an  opportunity  of
obeying the decree and has wilfully failed to obey it,  the  decree  may  be
enforced in the case of a decree for restitution of conjugal rights  by  the
attachment of his property or, in the case of  a  decree  for  the  specific
performance of a contract or for an  injunction  by  his  detention  in  the
civil prison, or by the attachment of his property, or by both.
     (2) Where the party against whom a decree for specific  performance  or
for an injunctions been passed is a corporation, the decree may be  enforced
by the attachment of the property of the corporation or, with the  leave  of
the Court, by the detention in the civil prison of the  directors  or  other
principal officers thereof, or by both attachment and detention.
     (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 and the decree-holder has applied to have the  attached  property
sold, such property may be sold; and 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 judgment-debtor 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.
    (5) Where a decree for the specific performance of a contract or for  an
injunction has not been obeyed, the Court may, in lieu of or in addition  to
all or any of the processes aforesaid, direct that the act  required  to  be
done may be done so far as practicable by the decree-holder  or  some  other
person appointed by the Court, at the cost of the judgment-debtor, and  upon
the act being done the expenses incurred may be ascertained in  such  manner
as the Court may direct and may be recovered as if  they  were  included  in
the decree.”

11.   Section 50 CPC deals with execution of decrees of all kinds  including
that of permanent injunction.   Section 146  CPC  provides  that  where  any
application which can be made by or against any person, it may  be  made  by
or against any person claiming under him except  as  otherwise  provided  in
the Code.  Order 21 Rule 16 deals with execution of decree by  a  transferee
with which we are not concerned in this case.  Order  21  Rule  32  provides
the  mode for execution of decree for injunction,  restitution  of  conjugal
rights and specific  performance.   Section  50  CPC  which  is  a  specific
provision   with   respect   to   execution   of   decree   against    legal
representatives, would  be attracted read with Order 21 Rule 32 CPC.

12.   It is crystal clear from a perusal of section 50(2) CPC that a  decree
for permanent injunction can be executed against the judgment debtor or  his
legal representatives. In Muthukaruppa Pillai & Anr. v. Ganesan (1995)  Supp
3 SCC 69, a question arose with respect to executability of the  decree  for
injunction in the backdrop of facts that the plaintiff had filed a suit  for
restraining the defendant-appellant from  interfering  with  her  rights  as
Hakdar and Pujari. The suit was decreed  and  it  was  held  that  the  said
rights were heritable and partible.  On  aforesaid  foundation,  decree  was
passed. The successor-in-interest of the  plaintiff  decree-holder  had  put
the decree for execution. It was contended that the  decree  for  injunction
was personal in nature and could have been  enforced  by  the  decree-holder
only. This Court held that there was nothing in  the  decree  for  permanent
injunction to hold that it lapsed with the death of  the  plaintiff  and  it
could be executed by heirs of decree holder. This Court has laid  down  thus
:

“1. This judgment-debtor’s appeal is directed against judgment and order  of
the High Court of Madras. The appellant was a defendant in a suit  filed  by
the predecessor-in-interest  of  the  respondent  for  permanent  injunction
restraining the appellant from interfering with  her  right  as  Hakdar  and
Pujari of two temples  in  Kottarakurichi  village.  The  suit  even  though
decreed by the trial court was dismissed by the first appellate  court.  But
the decree of the trial court was restored by the High Court, which  was  to
the following effect:
“[T]he defendants, their workmen,  their  agent,  etc.  be  and  are  hereby
restrained by an order of permanent injunction  from  interfering  with  the
plaintiff’s enjoyment of the plaint schedule property (described  hereunder)
till the end of 1965 Margali 30th (i.e.,  till  January  13,  1965)  and  in
every alternative years in future….”
The judgment of the High Court was  delivered  in  1969.  The  decree-holder
died in June 1981. The respondent who  claims  to  be  adopted  son  of  the
plaintiff in the original suit and also her  legatee  filed  an  application
for execution in 1981 under Section 146 and Order XXI Rule 16 of  the  Civil
Procedure Code. It was resisted by the appellant  on  various  grounds.  The
application was allowed against which the appellant filed  revision.  During
pendency of the execution proceedings, the respondent filed  an  application
before the Deputy Commissioner, Hindu Religious and  Charitable  Endowments,
Tirunelveli, Tamil Nadu, claiming the rights to do puja and enjoy the  share
of income from the two temples. The application was allowed  by  the  Deputy
Commissioner, but the  order  was  set  aside  by  the  Commissioner,  Hindu
Religious and  Charitable  Endowments,  Madras  in  revision  filed  by  the
appellant. It was held that the respondent could not claim better  and  more
rights than what were granted in favour of  his  predecessor-in-interest  by
the civil court. Against this order  of  the  Commissioner,  the  respondent
filed a writ petition. Both, the revision filed by the  appellant  and  writ
petition filed by the respondent were decided by a common  order.  The  High
Court maintained the order of  the  trial  court  in  execution,  except  to
certain extent. The writ petition filed by the respondent was dismissed.

2. The principal challenge to the order passed by the High Court is  on  the
nature of the decree. It is claimed  that  the  decree  being  personal,  it
could not have been executed by the respondent who claimed to be  successor-
in-interest of the plaintiff in the  suit.  The  submission  appears  to  be
devoid of any merit.  In  the  main  suit,  out  of  which  these  execution
proceedings have arisen, it was clearly held by  the  High  Court  that  the
rights were heritable and partible. In view  of  this  finding,  it  is  not
clear as to how can  the  appellant  raise  the  argument  of  decree  being
personal in nature. Apart from that, the decree passed by the  trial  court,
copy of which has been produced by the learned counsel for  the  respondent,
the authenticity of which is not disputed by the appellant,  and  which  has
been extracted earlier, clearly indicates that the  injunction  granted  did
not impose any such restriction expressly nor could  it  be  impliedly  held
that it lapsed with the death of the plaintiff.”

This Court has laid down that legal representatives  of  decree  holder  can
execute decree for permanent injunction relating to property or right  which
is heritable and partible.  When such is the situation, in our  opinion,  it
would be open to decree  holder  to  execute  decree  against  successor  of
interest of judgment-debtor also.

13.   In Ramachandra Deshpande v. Laxmana Rao Kulkarni  AIR  2000  Karnataka
298, a question arose with  respect  to  executability  of  the  decree  for
permanent injunction restraining the defendant from obstructing  plaintiff’s
use and enjoyment of  their  right  of  way  through  the  backyard  of  the
defendant’s house, and subsequently, the house was sold by  judgment-debtor-
defendant. It was held that the decree could have been executed against  the
transferee judgment-debtor. The rule that a decree for injunction cannot  be
enforced against a purchaser from a judgment-debtor  since  injunction  does
not run with the land for it is a  remedy  in  personam  is  not  applicable
considering the nature of rights  adjudicated  upon.  The  Court  held  that
enforcement of the decree against legal heirs of the deceased was  saved  by
section 50 CPC and as against the purchaser of the  suit  property  pendente
lite was saved by section 52 of the  Transfer  of  Property  Act.  The  High
Court has relied upon the decisions of this Court in Muthukaruppa  Pillai  &
Anr. v. Ganesan (supra) and in Kanhaiya Lal v. Babu Ram  (dead)  by  LRs.  &
Anr. (1999) 8 SCC 529.  The High Court has observed that if  the  remedy  of
injunction granted by a decree is in respect of any heritable  and  partible
right, it does not get extinguished with the death of a party  thereto,  but
enures to the benefit of the legal heirs of the  decree-holder,  as  such  a
decree could be executed against the successor-in-interest of  the  deceased
judgment-debtor as well. Similar is  the  decision  in  G.M.  Venkatappa  v.
Anjanappa & Anr. ILR 2006 Karnataka  4456,  wherein  also  the  question  of
executability of the decree for permanent injunction arose.
14.   Normally personal action dies  with  person  but  this  principle  has
application to limited kinds of causes of actions. In Girijanandini Devi  v.
Bijendra Narain Choudhary AIR 1967 SC 1124,  this  Court  while  considering
the question whether the decree  for  account  can  be  passed  against  the
estates, also considered the maxim “actio personalis  moritur  cum  persona”
and observed that  the  postulation  that  personal  action  dies  with  the
person, has a limited application.   It  operates  in  a  limited  class  of
actions, such as actions for damages, assault  or  other  personal  injuries
not causing the death of the party and in  other  actions  where  after  the
death of the party the relief granted could not be enjoyed  or  granting  it
would be nugatory.  Death of the person liable to  render  the  account  for
property received by him does not therefore  affect  the  liability  of  his
estate.  This Court has observed thus:
 “(14)  Finally,  it  was  urged  that  since  defendants  Mode  Narain  and
Rajballav Narain had died during the pendency of the proceedings,  the  High
Court was incompetent  to pass a decree for account against  their  estates.
Rajballav who was defendant No.6 died during the pendency of  the  suit  for
the Trial Court and Mode Narain who was defendant  No.1  in  the  suit  died
during the pendency of the appeal in  the  High  Court.   But  a  claim  for
rendition of account is not  a  personal  claim.   It  is  not  extinguished
because the party who claims an account, the party who  is  called  upon  to
account dies.    The  maxim  “action  personalis  moritur  cum  persona”   a
personal action dies  with  the  person,  has  a  limited  application.   It
operates in a limited class of  actions  ex  delicto  such  as  actions  for
damages for defamation, assault or other personal injuries not  causing  the
death of the party, and in other actions where after the death of the  party
the relief granted could not be enjoyed or granting it  would  be  nugatory.
An action for account is not an action for damages ex delicto, and does  not
fall within the enumerated classes.  Nor is it such that the relief  claimed
being personal could not be enjoyed after death, or  granting  it  would  be
nugatory.  Death of the person liable to  render  an  account  for  property
received by him does not therefore affect the liability of his  estate.   It
may be noticed that this question was not raised in the Trial Court  and  in
the High  Court.   It  was  merely  contended  that  because  the  plaintiff
Bijendra Narain was receiving income of the lands of  his  share  no  decree
for accounts could be made.  The High Court rejected the contention that  no
account would be directed in favour of the plaintiff on that account.   They
pointed out that the mere fact that the plaintiff was in possession of  some
portion of properties of  the  joint  family  since  1941  cannot  possibily
absolve the defendants, who were  in  charge  of  their  dealings  with  the
management of the properties, from rendering accounts of  the  joint  family
estate.  The plaintiff was since  September  1941  severed  from  the  joint
family in estate and also in mess and residence,  and  he  was  entitled  to
claim an account from the defendants from September 1941, but not  for  past
dealings.  The fact that the plaintiff is  in  possession  of  some  of  the
properties will, of course,  have  to  be  taken  into  account  in  finally
adjusting the account.”

15.   The views of the High Courts which are relied upon are  by  and  large
in favour of executability of decree.  Of course  it  would  depend  on  the
right litigated, findings recorded and the nature of  decree  granted.    In
D’souza J. v. Mr. A. Joseph AIR 1993 Karnataka 68, a  Single  Bench  of  the
Karnataka High Court held that  when  a  decree  for  injunction  against  a
person can be enforced even against his son, it is obvious  that  a  similar
logic should hold good even in the case of the death of  the  plaintiff  who
has obtained a decree.  There should not be any legal impediment for a  heir
of a  decree-holder  to  enforce  the  decree  for  injunction  against  the
judgment-debtor.  There is no such legal impediment on  the  principle  that
injunction does not run with the land.   Yet another Division Bench  of  the
Kerala High Court in Rajappan and  Ors.  v.  Sankaran  Sudhakaran  AIR  1997
Kerala 315, also considered the question  of  violation  of  decree  by  the
legal representatives of judgment-debtor and has laid  down  that  a  decree
for permanent injunction can be executed against  them.    It  was  observed
that  if  a  decree  for  injunction  compels  personal  obedience,  it   in
appropriate cases would not be enforced against the  legal  representatives.
 However, if subject matter of the suit and the act  complained  of  was  on
the basis of ownership of an adjacent property of the other side, then  such
a decree for injunction would be binding  not  only  against  the  judgment-
debtor personally but all  those  who  claim  through  him.   A  decree  for
perpetual  injunction  was  passed  restraining  the  judgment-debtors  from
trespassing into the decree  schedule  property  destroying  the  boundaries
thereof and from interfering with  the  rights  of  the  decree-holder.  The
legal representatives of the judgment-debtor violated the  injunction.   The
Court, in our opinion, rightly held that the executing court  could  execute
the decree of perpetual injunction against the legal representatives of  the
judgment-debtor.
16.   In Krishnabai Pandurang Salagare v.  Savlaram  Gangaram  Kumtekar  AIR
1927 Bombay 93 it was held that when a decree is passed against a  judgment-
debtor, it can  on  his  death  be  enforced  not  only  against  the  legal
representatives, but also against the transferee from those  representatives
who take under an alienation pending the execution proceedings.
17.   In Amritlal Vadilal v. Kantilal Lalbhai AIR 1931  Bombay  280  it  has
been observed that a decree for injunction does not run with  the  land  and
cannot be enforced in absence of the statutory provision  against  surviving
member of joint family or against purchaser from judgment-debtor but can  be
enforced against legal representatives joined under Section 50  CPC  and  so
also against transferees from original judgment-debtor as per Section 52  of
the Transfer of  Property  Act.     In  Ganesh  Sakharam  Saraf  v.  Narayan
Shriram Mulaye AIR 1931 Bombay 484 it was held that though an injunction  is
a personal remedy and does not run with the land, ordinarily  a  decree  for
an injunction can be executed only against  the  persons  against  whom  the
injunction is issued and cannot be executed against any other person in  the
absence of a statutory provision.  If an injunction  decree  is  capable  of
being enforced against a person other than the judgment-debtor by virtue  of
a statutory provision contained in  Section  50  CPC,  it  can  be  executed
equally against the son who inherits the estate of his  father  as  well  as
against one who was joint with the father and brought on the record  as  his
legal representative.  It was also observed that where  a  decree  had  been
passed against the father as a  manager  and  representative  of  the  joint
family, it could be executed against  his  son  who  represented  the  joint
family.
18.   In Manilal Lallubhai Patel v. Kikabhai Lallubhai AIR 1932  Bombay  482
a Single Bench has held that where a  decree  for  an  injunction  has  been
passed against the father, the son not being joined  as  a  party,  and  the
father dies during the pendency of the  execution  proceedings,  the  decree
can be  enforced  under  Section  50  CPC  against  the  son  as  his  legal
representative by proceeding under Order 21, Rule 32.
19.   In Somnath  Honnappa  Bennalkar  v.  Bhimrao  Subrao  Patil  1974  ILR
Karnataka 1506, a compromise decree was passed in favour  of  the  plaintiff
for permanent injunction restraining the  judgment-debtor  from  interfering
with  the  plaintiffs  possession  and  enjoyment  of  the  suit   property.
Subsequently, the plaintiff sold his suit property to the assignee and  also
assigned compromise decree in his favour.  The assignee took  out  execution
against  the  judgment  debtor.    It  was  held  that  the  assignee  of  a
compromise decree was not competent to execute the decree.   It was  further
held that the compromise decree for injunction was personal and did not  run
with the land.   However, it was a case of assignment  and  not  covered  by
section 52 of the Transfer of Property Act.
20.   The High Court  of  Karnataka  in  Hajaresab  v.  Udachappa  1984  ILR
Karnataka 900 has also held that under the provisions of Section 50 CPC  the
legal representatives of the deceased defendant against whom the decree  for
injunction is passed would be liable for violation of that decree.   It  was
also observed that Section 50 CPC does not make any  distinction  between  a
decree for permanent injunction and a decree of any other nature.  The  High
Court has referred to the ‘Execution Proceedings’  by Shri  Soonavala,  1958
Edition thus:

“In Execution Proceedings by Shri Soonavala, 1958 Edition, on  page  386  it
is said: -


"A decree for injunction does not run with the land and cannot  be  enforced
against a purchaser of the property  from  the  defendant.  But  it  can  be
enforced against a legal  representative  of  the  deceased  j.d.  Plaintiff
obtained a  decree  against  the  defendant,  restraining  the  latter  from
obstructing the access to light  and  air  to  her  windows.  The  plaintiff
applied for execution praying that the  portion  of  the  defendant's  house
which obstructed her windows should be pulled down. While  this  application
was pending the defendant died and his son  and  heir  was  brought  on  the
record. The lower Courts directed that the  decree  should  be  executed  as
prayed for and directed the appellant (the son  and  heir  of  the  deceased
defendant) to pull down the obstructing portion of  the  house  in  question
within a given time. It was contended for the appellant  that  the  original
defendant having died, the injunction could not be enforced against his  son
(the appellant) as an injunction does not run with the  land.  It  was  held
that having regard to the provisions of Section 50, the  injunction  ordered
against the deceased defendant might be enforced against  his  son  and  his
legal representative.


The author has further said on the same page -


"But a decree for injunction cannot be enforced against a purchaser  of  the
property from the defendant or  against  a  person  who  is  not  his  legal
representative. The plaintiff obtained a decree  restraining  the  defendant
in his user of certain land and applied for execution. Mean while  the  land
had been sold in execution of another decree against the defendant  and  the
purchaser at the Court sale obtained  possession.  The  plaintiff  thereupon
applied that  the  purchaser  should  be  made  a  party  to  the  execution
proceedings and that execution should go against him as well as against  the
defendant, It was held that no order for execution could be made.  It  could
not go on against the defendant as all his interest in  the  land  had  been
sold in execution of a decree, and it could not go on against the  purchaser
as an injunction does not run with the land."


The author has further said -


"A decree for injunction does not run with the land and in  the  absence  of
any statutory provision, such  a  decree  cannot  be  enforced  against  the
surviving members of a joint family or against a purchaser  from  j.d.   But
where the sons  of  the  j.d.  are  brought  on  the  record  as  his  legal
representatives under Section 50, the decree can be  executed  against  them
and so also against the transferees from the  legal  representatives,  under
Section 52, Transfer of Property Act. On  the  same  principle,  viz.,  that
they are bound by the result  of  the  execution  proceedings  under Section
52, T.P. Act, the transferees from the original j.d. during the pendency  of
the execution proceedings against him, can be held  to  be  similarly  bound
and are liable to be proceeded against in execution".


The author has further said on page 387 as -


"A decree awarding certain reliefs  by  way  of  injunction  was  passed  in
favour of the plaintiff. Before execution was  applied  for,  the  defendant
died and the darkhast proceeded against two widows of the deceased  j.d.  as
his legal representatives. During the pendency of the  appeal  in  execution
the legal representatives  transferred  their  property  to  a  stranger.  A
question was raised that execution  could  not  proceed  against  the  legal
representatives and their transferee,  as  the  relief  granted  by  way  of
injunction was purely personal  and  the  original  j.d.  having  died,  the
injunction has ceased to  be  operative,  it  was  held  that  the  darkhast
originally  filed  against  the   legal   representatives   was   in   order
under Section 50, C.P.C., and was also good against the  transferee  as  the
transfer was not made under the authority of the Court and,  being  effected
during the pendency of a contentions proceeding in execution of the  decree,
could not be allowed to affect the  right  of  the  plaintiff  under Section
52, T.P. Act. (Krishnabai - v. - Sawlaram, I.L.R. 51 Bom. 37; 100 LC. 582  :
A.I.R. (1927) Bom. 93; also see, 9 Bom.  L.R.  1173;  I.L.R.  26  Bom.  140,
283.) An injunction is a personal remedy and does not run with the  land.  A
decree for an injunction therefore can be executed only against the  persons
against whom the injunction is issued and cannot  be  executed  against  any
other person in the absence of  a  statutory  provision.  If  an  injunction
decree is capable of being enforced against a person other than the j.d.  by
virtue of a statutory provision, e.g. Section 50, C.P.C, it can be  executed
equally against the son who inherits the estate of his  father  as  well  as
against one who was joint with the father and is brought on  the  record  as
his legal representative.  A d.h. sought to execute a decree  for  permanent
injunction obtained against the father in a joint Hindu family  against  his
sons. It was held that the decree being  passed  against  the  father  as  a
manager and representative of the joint family  could  be  executed  against
his son who represented the joint family; that  the  son  taking  the  joint
family estate by survivorship was to be regarded as a 'person'  who  in  law
represented the estate of a deceased person within the meaning of the  first
part of the definition in Section (2) (11), C.P.C"


                                                         (emphasis supplied)

21.   In Basavant Dundappa v. Shidalingappa Sidaraddi ILR  (1986)  Karnataka
1959 relied on by the respondents, it was held that when an application  had
been filed by the decree-holder for execution and  similar  application  was
dismissed on the ground that it was not  maintainable,  another  application
for the same relief stands barred.
22.   In Shivappa Basavantappa Devaravar v. Babajan 1999 (4) Kar. L.J.  293,
relied on  by  respondents,  where  in  a  suit  for  permanent  injunction,
injunction was granted and was upheld  by  the  first  Appellate  Court  and
second appeal was filed and the  legal  representatives  of  judgment-debtor
wanted to prosecute the same, a single Bench applied the  principle  of  the
maxim “actio personalis  maritur  cum  persona”  and  held  that  the  legal
representatives had no right to pursue  the  appeal.   In  our  opinion,  it
cannot be said  that  single  Bench  has  correctly  appreciated  the  legal
position as suit was based on title in the aforesaid decision.  At the  same
time, the Single Judge has also observed that if  the  injunction  had  been
obtained by plaintiff against the defendant and  if  plaintiff  died,  legal
representatives would have been entitled to the benefit of  injunction.   In
our opinion, the High Court has erred in dismissing  the  appeal.  The  said
maxim had no application, thus the decision cannot  be  said  to  be  laying
down the correct proposition of law and is overruled.
23.   Another decision which has been  referred  to  is  Abdul  Kardar  Haji
Hiroli v. Mrs. Judaih Jacob Cohen 1969 BLR 749 in which the  question  arose
about the  executability of the decree  containing  covenants  running  with
the land and the same was passed with the consent of the parties, the  Court
held that it was not executable against the third party  and  the  purchaser
of the land.  The question does not arise for consideration as  the  present
case is not the case of transfer or execution by or against  the  purchasers
of the land.
24.   Learned author Mulla in his Commentary on the Code of Civil  Procedure
(18th Edition) Vol I, while analyzing the provisions of Section 50  CPC  has
referred to various decisions of the High  Courts  (Sakarlal  v.  Parvatibai
(1902) 26 Bom 283, Amritlal v. Kantilal AIR 1931 Bom 280, Ganesh v.  Narayan
AIR 1931 Bom 484,  Dayasbhai  v.  Bapalal  (1902)  26  Bom  140,  Vithal  v.
Sakharam (1899) 1 Bom LR 854, Jamsetji v.  Hari  Dayal  (1908)  2  Bom  181,
Chothy Theyyathan v. John Thomas AIR 1997 Ker 249,  Krishnabai  v.  Savlaram
AIR 1927 Bom 93, Kalpuri Ellamma v. Nellutla Venkata Lakshmi 2008  (72)  All
Ind Cas 669) with respect to the executability of decree for injunction  and
observed at pages 687-688 thus:
      “12.   Decree for  injunction.-   An  injunction  obtained  against  a
defendant, restraining him  from  obstructing  plaintiff’s  ancient  rights,
may, on the death of the defendant, be enforced under this section,  against
his son as  his  legal  representative,  by  procedure  under  O  21,  r  32
(Sakarlal v. Parvatibai, (1902) 26 Bom 283;  Amritlal v. Kantilal, AIR  1931
Bom 280 : (1931) 33 Bom LR 266.  Code  of  Civil  Procedure  1882,  s  260).
Similarly, a decree for an injunction against a manager  and  representative
of a joint Hindu family can be enforced after his death against  a  son  who
represents the joint family (Ganesh v. Narayan, AIR 1931 Bom  484  :  (1931)
55 Bom 709).   But such an injunction cannot be enforced under this  section
against a purchaser of the property from the defendant,  for  an  injunction
does not run with the land.  The remedy of the decree-holder is to  bring  a
fresh suit for an injunction against the purchaser  (Dayasbhai  v.  Bapalal,
(1902) 26 Bom 140; Vithal v. Sakharam, (1899) 1  Bom  LR  854;  Jamsetji  v.
Hari Dayal, (1908) 32 Bom 181), when  the  decree  is  one  restraining  the
owner of the property from blasting rocks in his property on a finding  that
such blasting would injuriously affect the adjacent property of the  decree-
holder.  When once a decree is passed, it is obvious that the  defendant  in
the suit, judgment-debtor, would be  precluded  from  carrying  on  blasting
operation in his property.   To  say  that  when  he  is  succeeded  by  the
others, they would not be bound by the restrain relating  to  the  enjoyment
of the particular property is to derogate from the principle of  the  public
policy that there shall be no second  litigation  in  respect  of  the  same
right and the same property.  It cannot be the  policy  of  law  that  every
time an assignment of the decree schedule property take place,  the  decree-
holder should institute a fresh suit against the assignee, so as to  prevent
them from disobeying the  decree obtained by the decree-holder  against  the
original owner of the property (Chothy Theyyathan v. John Thomas,  AIR  1997
Ker 249.    See  notes  to  s  47,  ‘Representatives  No.  (6)-Purchaser  of
Property’).  The Bombay High Court  has  held  that  an  injunction  can  be
enforced against a person who has purchased while execution proceedings  are
pending, by virtue of the doctrine of lis pendens (Krishnabai  v.  Savlaram,
AIR 1927 Bom 93 : (1927) 51 Bom 37).

      In execution of a decree for perpetual injunction,  the  liability  of
the legal representatives of the judgment-debtors is limited to  the  extent
of interference which was restrained through such decree.  It is  only  such
legal representatives who defy the decree  that  can  be  proceeded  against
(Kalpuri Ellamma v. Nellutla Venkata Lakshmi, 2008 (72) All Ind  Cas  669).”


25.   In K. Umma v. T.K. Karappan AIR 1989 Ker 133 the High Court of  Kerala
has observed that where a decree for injunction is obtained against  a  sole
judgment-debtor, restraining him from obstructing the plaintiff in  erecting
a fence on the boundary of his property, the decree can be executed  against
the legal representatives of the judgment-debtor, if he dies.
26.   In our considered opinion the right which had been adjudicated in  the
suit in the present matter and the findings  which  have  been  recorded  as
basis for  grant  of  injunction  as  to  the  disputed  property  which  is
heritable and partible would enure not only to  the  benefit  of  the  legal
heir of decree-holders but also would bind the legal representatives of  the
judgment-debtor. It is apparent from section 50 CPC that  when  a  judgment-
debtor dies before the  decree  has  been  satisfied,  it  can  be  executed
against legal representatives. Section 50 is not confined  to  a  particular
kind of decree. Decree for injunction can also  be  executed  against  legal
representatives  of  the  deceased  judgment-debtor.  The   maxim     “actio
personalis moritur cum persona” is limited to  certain  class  of  cases  as
indicated by this Court in Girijanandini Devi v. Bijendra  Narain  Choudhary
(supra) and when the right litigated upon is  heritable,  the  decree  would
not normally abate and can be enforced by LRs. of decree-holder and  against
the judgment-debtor or his legal representatives. It would  be  against  the
public policy to ask the decree-holder to litigate once over  again  against
the  legal  representatives  of  the  judgment-debtor  when  the  cause  and
injunction survives.  No doubt, it is true  that  a  decree  for  injunction
normally does not run with the land. In the absence of statutory  provisions
it  cannot  be  enforced.  However,  in  view  of  the  specific  provisions
contained in section 50 CPC, such a decree can  be  executed  against  legal
representatives.
27.   Resultantly, we allow  the  appeals,  set  aside  the  impugned  order
passed by the  High  Court  and  hold  that  the  direction  issued  by  the
executing  court  that  an   undertaking   be   furnished   by   the   legal
representatives to  abide  by  the  decree  is  proper,  failing  which  the
executing court would proceed in a permissible mode in accordance  with  law
to enforce the decree under the provisions of Order  XXI  Rule  32  CPC.  No
costs.
                                             …………………………J.
                                             (Arun Mishra)

New Delhi;                                   ………………………..J.
February 20, 2017.                                 (Amitava Roy)

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