CASES REFERRED:
1. L.L.R 26 Bombay 283 -
Sakarlal Jaswantrai v. Bai Parvathibai
(Followed)
2. A.I.R 1931 Bombay 280 -
Amritlal Vadilal… v. Kantilal Lalbhai….
(Referred)
BOOKS REFERRED:
1. Soonavala - Execution Proceedings,
1958 Edition - Pages 386, 387.
2. Mulla - Code of Civil Procedure
13th Edition - Page 264
Mr. K.S Savanur for Petitioner.
Mr. S.N Therdal for Ravivarma Kumar for Respondents.
Kulkarni, J.:—
This revision by the decree-holder is directed against the order dated 3-7-1979 passed by the Munsiff, Kundagol, in Execution Case No. 3 of 1977.
2. The decree-holder plaintiff filed a suit in O.S No. 30 of 1972 against one Udachappa, the husband of L.R No. 1(d) and father of L.R Nos. 1(a) to 1(c) for a declaration that he was a tenant of the suit property and for permanent injunction restraining him (Udachappa) from interfering with his possession. The said suit was decreed in 1973 against Udachappa. Udachappa's appeal in R.A No. 180 of 1973 was dismissed on 24-7-1974.
3. The decree-holder sued out the present execution in 1977 alleging that notwithstanding the permanent injunction decree against Udachappa, his L.Rs 1(a) to (d) have started interfering with his possession of the suit property. Thus, according to him, the legal representatives have wilfully failed to obey the decree. Hence, he filed the execution praying for arrest and detention under Order 21 Rule 32 of the Code of Civil Procedure. He also sought to recover the costs awarded to him in O.S No. 30 of 1972 and R.A No. 180 of 1973.
4. So far as regards the costs are concerned, the legal representatives cannot escape the liability. The decree-holder is entitled to execute the decree against the L.Rs, of the original defendant for recovering the costs. The L.Rs, would be liable to the extent of the property of the deceased that has come to their hands. The costs can be recovered by the decree-holder only by pursuing against the property of the deceased Udachappa, which has come to the hands of the L.Rs
5. Now the question is whether the decree holders can proceed against the legal representatives of the deceased defendant for the violation of the permanent injunction decree passed against the original defendant.
6. The Learned Counsel Sri Savanur referred me to Section 50 of the Code of Civil Procedure, which reads as:—
“(1) Where a judgment debtor dies before the decree has been fully satisfied, the holder of a 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”.
Section 50 of the Code of Civil Procedure does not make any distinction between a decree for permanent injunction and a decree of any other nature.
7. 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 deceassed 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. Meanwhile 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 I.C 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”
8. The Learned Author Mulla in his Code of Civil Procedure, Thirteenth edition, has stated on page 264, as—
“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 (Code of 1882, Section 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. 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.”
9. In Sakarlal Jaswantrai v. Bai Parvatibai . I.L.R 26 Bombay 283., a similar question arose.
L.H Jenkins, C.J, held on page 287:—
“Next, it is urged that as the original judgment-debtor is dead, the injunction cannot be enforced against his son, the present appellant, and for this purpose reliance has been placed on the rule that an injunction does not run with the land, and on our decision in Dahyabhai v. Bapalal (1901) 26 Bom. 140. Our decision was concerned with an application to enforce an injunction against a purchaser of land, and for such a case there is no statutory provision. It is otherwise, however, where there is a devolution on death. For that contingency an express provision is made by Section 234 of the Civil Procedure Code which is in these terms:
If a judgment/debtor-dies before the decree has been fully executed, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
Such representative 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 the said representative to produce such accounts as it thinks fit.
This case falls precisely within the terms of that Section, but we are asked to hold that it has no application to those decrees which are described in Section 260. We can see no sufficient reason for withholding from the words of Section 234 their ordinary meaning, nor has Mr. Khare been able to suggest any inconvenience that would result from our giving to those words of Section 234 their natural force. On the other hand, it is not difficult to see that if we were to accede to Mr. Khare's argument, we would be placing yet another obstacle in the way of a successful litigant's reaping the benefit of a decree passed in his favour.
In our opinion, therefore, the decree in this case is one to which the provisions of Section 234 are applicable. The suggestion that the appellant is not the legal representative of the judgment-debtor cannot now be entertained; for it is explicitly stated in the judgment of the lower Appellate Court that the present appellant ‘is admittedly the heir of the judgment-debtor and has succeeded to the ownership and possession of the roof and house in respect of which the order is made.’ Having regard to the last paragraph of Section 234, the execution against the appellant will be limited to the attachment of the property of the deceased come to his hands and not duly disposed of, and to such further process in relation to that property as is contemplated by Section 260.”
Similar principle is laid down in Amritlal Vadilal… v. Kantilal Lalbhai…. . A.I.R 1931 Bombay 280..
10. Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison, cannot be enforced in the case of the legal representatives at all.
11. The Learned Counsel Sri Therdal urged that the form of the decree passed in this case was purely personal to the defendant and that his legal representatives would not be liable for the violation of that decree. This argument holds no substance in view of the above discussion of Section 50 of the Code of Civil Procedure.
12. He then urged that Order 21 Rule 32 requires that there should be a wilful failure to obey the decree. If the legal representatives violate the injunction granted against the defendant, it can be only said that violated the decree with the knowledge that the decree for injunction has been passed against the defendant. It would be a clear case of wilful failure to obey the decree. Therefore, his argument in that connection is rejected.
13. He next urged that the legal representatives 1(a) to 1(c) were minors and the minors cannot be said to have any intention much less wilful intention. Thus, according to him, the minors cannot be held liable under Order 21 Rule 32 of the Code of Civil Procedure. The question would be whether the minor legal representatives have themselves violated the decree. If the minors also with the knowledge of the decree for injunction, have failed to obey the same, then they too would be liable.
14. Then the next question urged by Sri Therdal is that as contemplated by Order 32 Rule 3 of the Code of Civil Procedure, a guardian had to be appointed for the minor legal representatives 1(a) to 1(c). It is a mandatory provision. The question of a guardian being appointed during the pendency of the suit does not arise at all in this case, because the defendant died after the decree was passed. These legal representatives are proceeded with for the first time in this execution petition. So, minors cannot be proceeded against without a guardian being appointed. The Court below should give an opportunity to the decree-holder to take necessary steps in the matter.
15. He then urged that the plaintiff decree-holder had filed the suit for declaration that he was a tenant of the suit property and that he was in possession and he had also asked for permanent injunction on the ground that his possession was interfered with. The suit was disposed off in the year 1973 by decreeing the suit. The appeal R.A No. 180 of 1973 filed by defendant was disposed of on 24-7-1974. The Land Reforms Act has been amended by Amendment Act No. 1 of 1974, which came into force on 1-3-1974. The said amendment Act clearly ousts the jurisdiction of the ordinary Civil Courts in the matter of finding out the tenancy rights. The appeal has been disposed of, after the amending Act came into force. Even assuming for the time being that the declaration granted may not be proper, still there is another portion of the decree which is passed for permanent injunction. Therefore, the portion of the decree for permanent injunction cannot be said to have been passed without jurisdiction. Therefore, under these circumstances, his argument fails.
16. In the result, the order passed by the Court below is set aside. The revision is allowed. The matter is sent back to the Lower Court for fresh disposal according to law in the light of the directions given above.