KATHIYAMMAKUTTY UMMA Vs. THALAKKADATH KATTIL 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 defendant from obstructing the plaintiff "in erecting 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 during 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 new objected on the ground aforementioned. As the objections were overruled, one of the legal representatives filed the present revision petition.

(3.) Learned counsel for the petitioner contended that a decree for injunction is a personal decree and no person other that the parties to the decree is bound by the same and hence it cannot be executed as against the legal representatives. In support thereof, learned counsel referred me to the decision of a Division Bench of the Bombay High Court reported in Jamsetji Manekji Kotval v. Hari Dayal (1908 ILR (Vol. 32) 181). A plaintiff had obtained a decree for injunction restraining the defendant from causing obstruction to the plaintiff in passing over to his land through the adjoining land. The defendant was the owner of the adjoining land, but he subsequently sold the properly to a stranger. The plaintiff there upon instituted a new suit against the stranger-purchaser. The suit was resisted mainly on the ground that the remedy is not a second suit but only execution of the decree of the earlier suit. The Division Bench held that since an injunction does not run with the land, there is no bar in filing a fresh suit. The said decision cannot be taken as authority for the position that the only remedy is a fresh suit.