The decree-holder challenges the order of the Executing Court refusing to execute the decree for injunction obtained by him against judgment-debtors 1 and 2, against their assignees, impleaded as judgment-debtors 3 to 5. The decree restrained judgment-debtors 1 and 2 from blasting rock from the B Schedule property described in the decree. Judgment-debtors 3 and 4 are assignees of the decree B Schedule property. They violated the decree for injunction and the decree-holder sought to proceed against them under Order XXI, Rule 32 of the Code of Civil Procedure. The transferees resisted execution by contending that though they are assignees of the property covered by the decree, they cannot be proceeded against in execution under Order XXI, Rule 32 of the Code of Civil Procedure, since a decree for injunction is personal and affects only the original judgment-debtor and Section 52 of the Transfer of Property Act has no application since there is no decree against any property and an injunction does not run with the land. Their objection was upheld by the Executing Court and relief refused against the additional judgment-debtors. This refusal is questioned by the decree-holder.

2. Though generally a decree for prohibitory injunction restrains a person from doing something and in that sense it could be said to be personal, it cannot always be considered to operate merely against a person. In a case where the decree restrains a judgment-debtor from doing something in his own land to the detriment of the decree-holder or in derogation of a right claimed by the judgment-debtor to enjoy his own property as an owner, the decree could not be understood as merely personal and not binding on the representative or assignee of the judgment-debtor in relation to the property in respect of which it is obtained. In this case the decree is one restraining the owner of the B Schedule property from blasting rocks in their property on a finding that such blasting would injuriously affect the adjacent owner of the A Schedule property, 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 operations in his property. To say that when he succeed by others, they would not be bound by the restraint relating to the enjoyment of the particular property is to derogate from the principle of public policy that there shall be no second litigation in respect of the same right and the same property. To uphold a contention that the assignee from the judgment-debtor can with impunity go about blasting rocks from the decree B Schedule property against the terms of the decree would, in my view, jettison the very concept of finality of litigations, the concept of the merger of the cause of action in the decree and the principle of lis pendence, all principles of public policy. It cannot be the policy of law that every time an assignment of the decree schedule property takes place, the decree-holder should institute a fresh suit against the assignee so as to prevent him from disobeying the decree obtained by the decree-holder against the original owner of the property. In any event unless compelled, the court should not accede to such a contention and I see nothing which compels the court to come to the conclusion that the decree for injunction in the present case cannot be enforced against the assignees of the B Schedule property. Call it the principle of lis pendence or call it by any other name, the policy of our law is that normally an assignee or a legal representative is bound by the decree obtained against the assignor or the predecessor-in-interest. This is the policy underlining our procedure and it is recognised by Section 146, Order 21, Rule 16 and the Explanation to that Rule, Section 11 and Section 50 of the Code of Civil Procedure and Section 52 of the Transfer of Property Act. The view of the executing Court that the principle of Section 52 of the Transfer of Property Act cannot apply since no right to immovable property is directly and specifically questioned in the suit cannot be accepted in the broad manner in which it is put. Even if an injunction cannot be considered to be a covenant running with the land, it could still be held on the scheme of the Code of Civil Procedure and the principle of Section 52 of the Transfer of Property Act that such a decree for injunction could be enforced against the legal representatives or assignees of the judgment-debtor as provided in Order 21, Rule 32 of the Code of Civil Procedure.

3. In my view, Section 146 of the Code of Civil Procedure clearly meets the situation. Section 146 provides that proceedings that may be taken against any person, could be taken against any person claiming under him. It has been held that an assignee of the property from the decree-holder could execute the decree without reference to Order 21, Rule 16 of the Code of Civil Procedure by invoking Section 146 of the Code. It has also been held by this Court in Kathiyammakutty Umma v. Jhalakkadath Kallil Karappan, AIR 1989 Ker 133, that a decree for injunction restraining the defendant from obstructing the plaintiff in erecting a fence on the boundary of his property could be executed against the legal representatives of the original judgment-debtor, even in a case where the decree is one for injunction. The Supreme Court, in the decision in Zila Singh v. Hazari, AIR 1979 SC 1066, has held that even in the case of a pre-emption decree, the decree could be executed by an assignee of the property in view of Section 146 of the Code of Civil Procedure. The Supreme Court referred to the decision in Jugalkishore Saraf v. Raw Cotton Co., Ltd., 1955 SCR 1369: (AIR 1955 SC 376), which was a case of assignment of a debt wherein it was held that the assignee of the debt could execute the decree obtained by the assignor of the debt by invoking Section 146 of the Code of Civil Procedure. The Supreme Court also referred to the decision in Saila Bala Dassi v. Nirmala Sundari Dassi, 1958 SCR 1287: (AIR 1958 SC 394), wherein it was held that Section 146 of the Code was introduced for the first time in the Code with the object of facilitating the exercise of rights by persons in whom the rights came to be vested by devolution or assignment and being a beneficient provision, should be construed liberally so as to advance justice and not in a restricted or technical sense. The Supreme Court finally held that a decree for preemption could be enforced by the assignee of the property by recourse to Section 146 of the Code of Civil Procedure.

4. Learned Counsel for the additional judgment-debtors cited the decision in Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil, ILR (1974) Kant 1506, in support of his contention that a decree for injunction could not be enforced by the assignee of the property from the original decree-holder. In that decision, the Karnataka High Court, after referring to the decisions of the Bombay High Court, stated that the compromise decree for injunction passed in the suit being personal to the assignor and not one running with the land, the assignee did not acquire the right to execute the decree by virtue of the assignment in his favour. With respect, I must point out that no argument was addressed before the Karnataka High Court based on Section 146 of the Code of Civil Procedure. I must notice here with respect that two of the decisions of the Bombay High Court relied on by the learned Judge of the Karnataka High Court were rendered prior to the introduction of Section 146, in the year 1908, in the Code. I must also notice in this context the decision of the Bombay High Court in Krishna Bai v. Savalram, AIR 1927 Bom 93, wherein it was held that an injunction could be enforced against the person who has purchased the property while execution proceedings are pending, by virtue of the doctrine of lis pendence. The other decision relied on by learned Counsel for the additional judgment-debtor is the one in Harajesab v. Udachappa, ILR (1984) 2 Kant 900. Therein, after referring to Section 50 of the Code of Civil Procedure, the learned Judge has held that the legal representatives of a deceased judgment-debtor could not be arrested and detained in civil prison, but they are liable for violation of the decree and payment of costs, the liability being limited to attachment of the property of the deceased in their hands. Therein, a passage from Sonavala on Execution Proceedings, to the following effect is referred to:

“The decree for injunction does not run with the land. 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 the judgment-debtor. But where the sons of the judgment-debtor 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, Transfer of Property Act, the transferees from the original judgment-debtor 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.”

This passage in my view, with respect, supports the contention of the decree-holder that the assignee of the decree B Schedule property subsequent to the decree or pending the execution, is bound by the decree. Again, I must note with respect that the scope of Section 146 of the Code of Civil Procedure as expounded by the Supreme Court has not been referred to. Moreover, what was ultimately held in that case was that the execution could proceed against the legal representatives of the judgment-debtor, but only limited to recovery of costs to the extent of the assets held by them from the judgment-debtor. This decision in my view does not lay down a rule that no decree for injunction could be executed against the assignee of the judgment-debtor.

5. Section 52 of the Transfer of Property Act embodies a principle of public policy. One of the purposes is to avoid multiplicity of litigation merely on the ground that the defendant in the suit has parted with his rights over the property pending adjudication of the proceedings. A Full Bench of our court has held in Venkitaramma Iyer v. Vesu Amma, (1995) 2 Ker LT 295, that Section 52 of the Transfer of Property Act cannot be confined to transfer of immovable property alone. The purpose of enacting Section 52 of the Act is that when any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding, so as to affect the rights of the opposite party. The Full Bench specifically stated that creation of any right in immovable property during the pendency of a suit or proceeding adverse to the interests of the opposite party, is hit by the rule as the very purpose of the doctrine of lis pendence is to subject the litigating parties and others who seek to acquire rights in immovable property pending litigation, to the power and jurisdiction of the Court where the dispute is pending for decision. If this principle be applied, there could be no difficulty in holding that the decree for injunction sued for by the plaintiff in the litigation could be clearly binding on the assignee of the decree schedule property from the judgment debtor.

6. It must also be noted that the decree for injunction granted in this case is one relating to the decree B schedule property and preventing certain activities being carried on therein to the prejudice of the decree holder. Such a decree cannot be said to be purely personal against the original judgment debtors in the sense that it is not related to their obligation not to do anything in the decree schedule property. It is reality a restriction on enjoyment of the decree B schedule property and such a restriction would obviously bind the assisgnees of the original judgment debtors judgment debtors and could be enforced by the decree holder. Here, the decree was obtained by the decree holder for the more beneficial enjoyment of his own property, namely, decree A schedule and in enforcement a right claimed in him to restrain the enjoyment of the decree B schedule property belonging to the judgment debtors for the more beneficial enjoyment of his own property. I am of the view that, in such a situation, there is nothing in law which compels the Court to take the view that the decree holder should go in for another suit against the transferee of the judgment debtor to continue the beneficial enjoyment which he has already secured by a decree, and the obligation imposed by the decree is lost on transfer of his property by the judgment dector or when the transfer is effected by the judgment debtor during the pendency of that litigation. In view of the broad scope of Section 146 of the Code indicated by the Supreme Court in the decision referred to earlier, I am inclined to hold that the decree could be enforced against the assignees of the judgment debtor, in circumstances like the present and the decree holder is not obliged to go in for a fresh suit against the assignee.

In that view, I hold that the executing Court has failed to exercise the jurisdiction vested in it by law in not granting the relief against the additional judgment debtors 3 to 5 as prayed for in E.P 313 of 1992.1 therefore hold that E.P 313 of 1992 is maintainable against additional judgment debtors 3 to 5 and they can be proceeded against for violation of the decree for injunction granted in favour of the decree holder in O.S 769 of 1988. Hence I set aside the order of the executing Court and remand E.P 313 of 1992 to the executing Court. The executing Court will grant the additional judgment dectors an opportunity to obey the decree and if they fail to obey the decree, would execute the decree in any of the modes available under Order 21, Rule 32 of the Code. The executing Court will also be entitled to issue appropriate directions to the police authorities to ensure that the decree is obeyed by the additional judgment debtors if the situation warrants the same.

The Civil Revision Petition is thus allowed, the order of the executing Court is set aside and the execution petition is remanded to the executing Court for executing the decree. In the circumstances, I make no order as to costs. The parties will appear before the executing Court on 28-2-1997.

Petition allowed.