Silu Peda Yelligadu ... v. Sree Raja Ravu Venka...

This is an appeal against the order of the Lower Appellate Court setting aside a portion of the order of the Court of the First Instance. The Lower Appellate Court disallowed execution of the decree so far as injunction against the judgment-debtor was concerned on the ground that the property to which the right of easement was attached had been subsequently transferred by the decree-holder to a third person. The transferee has not appeared and is not on the record of the case, nor has he applied for permission to execute the decree. So far as the record goes, the judgment-creditor is the decree-holder and is therefore prima facie entitled to execute the decree. It may be that the land haying been sold, the decree-holder is not entitled to enjoyment of the easement, but that is a question which it is not competent for a Court executing the decree to deal with in the circumstances of this case. It is bound to allow execution at the instance of the decree-holder as there was no other person who had the right to execute the decree.

The ruling reported in Ram Sahai v. Gaya is very much to the point. There the decree-holder had sold the property which gave rise to a right of pre-emption and the contention was raised that the property having been sold, the decree could not be executed at the instance of the decree-holder. That contention was disallowed on the ground that the executing Court was bound to recognise the decree-holder on record. There are number of other decisions which follow the principle laid down there. [See Monmotho Nath Mitter v. Rakhal Chandra Tewary, Jasoda Deye v. Kirtibash Das, Hansraj Pal v. Mukhraji Kunwar.] The appeal should be allowed. The Lower Appellate Court's order is, therefore, set aside and the District Munsif's order restored. The respondent must pay the costs of the appellant in this and the Lower Appellate Court.

Appeal allowed.