RAMACHANDRA DESHPANDE Vs. LAXMANA RAO KULKARNI

JUDGEMENT

(1.) BY this reference, we are called upon to decide the following questions :

(2.) ). The relevant undisputed facts leading to this reference may be stated as under :the petitioner herein was the plaintiff in Civil Suit No. 307/1906 which was filed by him in the trial Court, viz. , the then Court of Sub-Judge at Havari, against one Subbannacharya and his son Sheshacharya for the relief of declaration that he acquired by prescription the easementary right of way passing through the backyard of adjoining defendants' house from his (plaintiff's) house; and for permanent injunction restraining them from obstructing the plaintiff's use and enjoyment of that right of way, and also to restrain them from discharging the water from their bath-room into front yard of plaintiff's house. On contest, that suit was decreed as prayed by the trial Court by its judgment dated 21-12-1907. The said decree was taken in appeal by defendants in Appeal No. 48/1908. That appeal was dismissed by the appellate Court. Though the certified copy of the said decree is not produced on the record of this revision proceeding, yet, the aforestated position of the litigation between the parties in Civil Suit No. 307/1906 is not in dispute and the same is sufficiently borne out by the photocopies of the certified copy of the trial Court's judgment dated 21-12-1907 and of appellate Court's judgment dated 21-1-1908, which are produced along with a memo by the learned counsel for petitioner. The petitioner is hereinafter referred to as 'the decree-holder (D. Hr.)'. Long after the said decree for declaration and permanent injunction dated 21-12-1907 was obtained by the D. Hr. , the said judgment-debtor sold their said house premises to the respondent herein, together with its vacant space including its back-yard, by a registered sale deed dated 27-4-1955. Therefore, respondent is hereinafter referred to as 'the transferee-judgment-debtor'. Subsequently, on 4-9-1981, the execution application under Order 21, Rule 11 of the C. P. C. was filed by the decree-holder in the Court below against respondent-purchaser seeking execution of the said decree by his arrest and detention in civil prison to compel him to keep the said suit passage free for plaintiff's enjoyment, by removing the obstacles put up by him thereon, in obedience to the said decree. Notice to him was then ordered by the Court below on the D. Hr's said application. On its service, the former put in his appearance and filed his statement of objections through his counsel opposing the execution application on the ground that it was not maintainable in law as against him. His objection against non-maintainability of the application was that the decree in question being a decree for permanent injunction, it cannot be enforced as against him as he was a purchaser of the property from the judgment-debtors and since, in law, a decree for permanent injunction does not run with the land. That contention was accepted by the Court below in view of the single Bench decision of this Court in Basavantha Dundappa v. Shidalingappa Sidaraddi, ILR (1986) 2 Karnakata 1959, which was referred in a later decision of another single Bench in the case of D'souza v. Joseph, ILR (1992) Kant 2972 : (AIR 1993 Karnataka 68 ). Accordingly, the impugned order dismissing the said execution application of D. Hr. has been passed by it.

(3.) WHEN the revision came up for hearing before his Lordship Justice H. N. Tilhari, it was argued before him on behalf of the decree-holder that the law laid down in the case of Basavantha Dundappa that a decree for injunction cannot be enforced against the purchaser-judgment-debtor since injunction does not run with the land, is not the correct statement of law when examined in the light of Section 146, C. P. C. , and that this material provision was not looked into and considered by the learned Judge who decided the case of Basavantha. In other words, his contention was that, by force of Section 146 of the C. P. C. , the decree in question was enforceable against the transferee-judgment- debtor also, since he acquired ownership of the land in question through the original judgment-debtors, who were the rightful owners thereof. Apparently, this plea of D. Hr. 's counsel was found by Tilhari, J. , as carrying sufficient force. Therefore, his Lordship reached his opinion that the law stated in the case of Basavantha Dundappa, (ILR (1986) 2 Karnataka 1959) and reiterated in the subsequent single Bench decision of this Court in the case of D'souza v. Joseph (AIR 1993 Karnataka 68), required reconsideration by a larger Bench in view of Section 146 of the C. P. C. and also in the light of the principle laid down by the Supreme Court in the case of Muthukaruppa Pillai v. Ganesan, 1995 Supp (3) SCC 69. So, the aforementioned questions for decision by a larger Bench were framed and reference order dated 27-8-1998 was passed by him pursuant to which this matter has been placed before our Bench for resolution of the controversy.