Malimath, J.:— One Sitaram Desai filed O.S No. 52 of 1967 against Bhimrao Subrao Patil, the respondent, for a permanent injunction restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit property. In that suit, a compromise decree was passed on 16th October, 1967, restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit property. The decree-holder Sitaram Desai subsequently sold the suit property to the present appellant Somnath Honappa Bennalkar. The decree-holder also assigned the compromise decree passed in O.S No. 52 of 1967 in favour of the appellant. Thereafter, the assignee of the original decree-holder presented Execution case No. 74 of 1968 on 16th March, 1968 in the court of the Munsiff, Belgaum and sought execution of the compromise decree under Order XXI Rule 16 read with Order XXI Rule 32 of the Code of Civil Procedure. The respondent-judgment-debtor resisted the execution application on various grounds. He contended that the sale of the land as well as the assignment of the decree are illegal and invalid. It was, therefore, contended that the execution petition is not maintainable. The respondent-judgment-debtor denied that he has trespassed or encroached on the suit land, as alleged by the appellant. The learned Munsiff overruled the objections and ordered attachment of the movables of the respondent-judgment-debtor. The respondent then preferred an appeal in the Court of the Civil Judge. The learned Civil Judge allowed the appeal and remanded the case to the lower Court to dispose of the case afresh, after deciding the question regarding validity of the sale and assignment of the decree and after giving an opportunity to the parties to adduce evidence in support of their respective contentions. The said order of remand made by the Civil Judge was challenged by the respondent in this Court in M.S.A No. 120 of 1968. By an order dated 14th August, 1969, this Court dismissed the appeal of the respondent. Thereafter, the learned Munsiff considered the matter afresh as per the order of remand and the observations made by this Court while dismissing the appeal of the respondent against the order of remand. The learned Munsiff came to the conclusion that the sale of the property as well as the assignment of the decree are legal and valid. He held that the assignee from the decree-holder is entitled to execute the decree. The learned Munsiff, therefore, ordered attachment of the movable of the judgment-debtor. That order of the learned Munsiff was challenged by the respondent in appeal before the Civil Judge, Belgaum. The learned Civil Judge allowed the appeal of the respondent-judgment-debtor and dismissed the execution application. Hence, this execution second appeal by the applicant, the assignee of the decree-holder.
2. Shri A.V Albal, learned counsel for the appellant, submitted that the Court below was not competent to examine the validity of the assignment of the decree in view of the order passed by this Court on an earlier occasion in M.S.A 120 of 1968. Shri Albal submitted that in view of the order passed by this Court, the only question that the Munsiff was required to examine was as to whether there was in fact an assignment of the decree, which examination was required to be done by the executing Court only after the judgment-debtor produced the affidavit of the original decree-holder saying that there was no assignment of the decree. As already mentioned, this Court dismissed the appeal filed by the respondent-judgment-debtor against the order of remand made by the Civil Judge. It is clear from the order of remand made by the learned Civil Judge that the executing Court was required to decide afresh the questions regarding the validity of the sale deed and the assignment of the decree, after giving opportunity to both the parties to adduce evidence in support of their respective contentions. As the appeal against that order of remand made by the learned Civil Judge was dismissed by this Court, it is clear that the Court of first instance, was required to examine the validity of the sale deed as well as the validity of the assignment of the decree as directed by the Civil Judge in his order of remand. The observations made by this Court have reference to the additional ground taken by the respondent-judgment-debtor about the notice required to be given under the first proviso to Rule 16 of Order XXI of the Code of Civil Procedure. This Court has not observed that the executing Court should not examine the validity of the assignment of the decree as directed by the Civil Judge in the order of remand. There is, therefore, no substance in the contention of Shri Albal that the Court below was not competent to examine the question regarding validity of the assignment of the decree.
3. It was next urged by Shri Albal that the Court below committed an error of law in holding that the appellant, as the assignee of the compromise decree of injunction, is not competent to execute the decree. It is necessary to note that a compromise decree was passed in O.S 52 of 1967 to which the appellant was not a party. That suit which was only one for a permanent injunction restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit property ended in a compromise decree in favour of the plaintiff Sitaram Desai. It is well settled that an injunction, being personal, does not run with the land, vide:—decision of this Court in Ramachandra Govinda Palekar v. Narayan Zampanna Sulebhavi(1), Dahyabhai v. Bapalal(2) Jamesetji Manekji Kotval v. Hari Dayal(3), Abdul Kardar Haji Hiroli v. Mrs. Judah Jacob Cohen*(4), and Attorney General v. Birmingham, Tame and Rea District Drainage Board(5). The compormise decree of injunction passed in O.S 52 of 1967 being personal to Sitaram Desai and not running with the land, the appellant did not acquire a right to execute the decree by virtue of the sale and assignment in his favour. The compromise decree of injunction being personal to Sitaram Desai, the same could not be validly assigned in favour of the appellant. A similar question arose for consideration in the case reported in Jamsetji Manekji Kotval v. Hari Dayal. In that case, after the plaintiff obtained a decree of injunction against the defendant, sold his land. The purchaser who was also obstructed, brought his own suit for an injunction in terms similar to that formerly obtained by his vendor. An objection was raised to the maintainability of the suit on the ground that the only remedy of the purchaser was to execute the previous decree obtained by his vendor and not to institute a fresh suit. It is, no doubt, true that in that case there was no assignment of the decree of injunction by the original decree-holder. But, it is clear from the judgment rendered by Chief Justice Jenkins that the Court came to the conclusion that the proper remedy of the purchaser was to file a fresh suit, as he did in that case, and not to execute the decree obtained by his vendor on the ground that an injunction does not run with the land. I respectfully agree with the principle laid down in the said decision. Shri Albal placed reliance on the decision of the Allahabad High Court in Krishna Behari Goel v. Raj Mangal Persad(6). In that case, it was held that on the death of the plaintiff in a suit brought for permanent injunction, the suit does not abate on the ground that the cause of action survived to his legal representatives who came in possession of the property in dispute. The question as to whether an assignee of a compromise decree for permanent injunction is competent to execute the decree did not come up for consideration in that case. The said decision, therefore, does not assist the contention urged by Shri Albal. The other two decisions viz., Hazari v. Neki(7) and Meenakshi v. Presiding Officer, Mysore State Transport Appellate Tribunal(8), not being cases pertaining to executability of a decree of injunction by the assignee of the decree-holder, do not assist the appellant's contention.
4. For the reasons stated above, this appeal fails and the same is dismissed. No costs.