executability of decree for permanent injunction against the legal representatives of judgment- debtor. = 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.

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)