KATHIYAMMAKUTTY UMMA Vs. KARAPPAN

JUDGEMENT

(1.) THE judgment debtor died during execution proceedings of a decree for injunction. When his legal representatives were sought to be brought on record, they resisted contending, inter alia, that the decree for injunction is not binding on them since it is only a personal decree as against the original judgment debtor. The objection were overruled by the execution Court. This revision is in challenge of the order.

(2.) FACTS : the first Respondent obtained a decree (he will be referred to as the Plaintiff, for convenience) restraining the sole of Defendant from obstructing the Plaintiff "in creating a fence on the western boundary of the plaint schedule property and from interfering with Plaintiff 's peaceful possession and enjoyment of the suit property." The appellate court confirmed the decree. Decree holder was obliged to resort to execution proceedings since the Defendant was not inclined to keep away when the decree holder tried to put up the fence. The Defendant, at the same time, filed a second appeal, and using its pendency he passed away. The second appeal was dismissed as the legal representatives of the Defendant did not get impleaded in the appeal. But the decree holder filed an application in the execution court to implead the legal representatives as additional Respondents in execution proceedings. That is now objected on the ground aforementioned. As the objections were overruled, one of the legal representatives filed the present revision petition.

(3.) SECTION 50 of the Code of Civil Procedure (for short 'the Code') enables the holder of a decree to execute the same against legal representatives of the deceased judgment debtor. In such execution, the decree holder is subject to a restriction in Sub -section (2) that the execution shall only be to the extent of the property of the deceased which has come to the hands of the legal representative. The limitation imposed by Sub -section (2) applies generally in cases of money decrees. In the case of a decree for injunction, the modes of execution are prescribed in Order 21 Rule 32 of the Code. Sub -rule (1) enables the holder to enforce the decree by detention of the judgment debtor in the civil prison or by attachment of his properties or by both. Sub -rule (5) is an additional mode to be followed in execution of the decree for injunction, There is no inhibition in Rule 32 that the modes of execution prescribed there in cannot be exercised against the legal representative of the judgment debtor. In other words, what is permitted in Section 50 of the Code is not denied or even curtailed in Order 21 Rules 32. Section 146 of the Code enables taking of proceedings or making of applications against any one who claims under the person against whom such proceedings or applications could have been taken or made. The right conferred in Section 146 is not in any way restricted by Order 21 Rule 32. Hence it is not open to the legal representative of the judgment debtor in a decree for injunction to contend that he is not liable under the decree. There is no dispute in this case that the judgment debtors had right over the property which lies near the property in respect of which the decree for injunction was granted. The suit was filed in a view of the boundary dispute over the respective properties. The boundary claimed by the Plaintiff was upheld in the suit and hence the decree was passed by the trial court. In such a case, law does not impose any inhibition on the decree holder in executing the decree for injunction, after the death of the original judgment debtor against the legal representatives claiming under the said judgment debtor.