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)
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)
