T THOMAS BABU Vs. R VISWANATHAN NAIR

JUDGEMENT

(1.) What precisely is the distinction between legal heir and legal representative, whether the execution court can enforce obedience to a decree of mandatory injunction even by compelling perpetration of trespass are among the questions involved in this Writ Petition under Article 227 of the Constitution. The additional 6th defendant-judgment-debtor-respondent in a proceeding for execution of a decree of mandatory injunction commanding restoration of the decree schedule pathway challenges Ext.P3 order passed by the execution court directing him and the other legal heirs of his deceased father, the 1st defendant to restore the pathway to its original width and failing obedience to the above direction, to arrest and detain them in civil prison. Ext.P1 is copy of the decree which show that though the legal heirs of the 1st defendant had been impleaded on the trial side itself, decree has been passed only against defendants 1 and 2 and not against the legal heirs of the deceased defendants 1 and 2 and not against the legal heirs of the deceased defendant No. l. Ext.P2 is copy of an application which was filed before the execution court by the petitioner and the 10th defendant in the suit contending that there is no executable decree against them and seeking a decision regarding the executability of the decree against them. Et.P3 is copy of the order by which the learned Munsiff held that the decree was not executable against the 10th defendant but the same was executable as against the petitioner and others though there is no decree against them on the reason that they are legal representatives of the 1st defendant against whom there was decree. The facts relating to this case have been dealt with by me more detail in my judgment in W.P.C.No. 12099/04 filed by the decree-holder. Under the judgment I have upheld the order of the execution court declining execution against the 10th defendant.

(2.) Mr. Alex Varghese, learned counsel for the petitioner and Mr. T.K.M. Unnithan, learned counsel for the respondent-decree-holder addressed me in extenso.

(3.) One of the grounds urged before me by Mr. Alex Varghese was that the decree which is attempted to be executed against the petitioner is decree against a dead person, namely, the 1st defendant who was dead and gone at the time the decree was issued. Though the petitioner and the other legal heirs of the 1st defendant were impleaded on the trial side itself the decree-holder did not seek amendment of the relief portion of the plaint so as to seek decree against the persons to impleaded and this has resulted in the court passing decree against a dead person alone. Decree against a dead person is a nullity and is not executable. Counsel submitted that the decree of declaration and mandatory injunction passed in respect of the property against the 1st defendant cannot be obeyed by the legal heirs of the decreased 1st defendant since the properties are conveyed to the 10th defendant years prior to the institution of the suit. It will be possible to obey the decree only by trespassing into the property owned and possessed by the 10th defendant. The execution court is not justified in insisting that the petitioner trespasses into the 10th defendant's property for obeying a decree which has not been passed against him.