ASSERIKANDY KALLIANI Vs. KUNHIMADHAVI AMMA

JUDGEMENT

(1.) This C.R.P. is filed against the order in E.P. 75/1996 in O.S. 2/1974 on the file of the Munsiffs Court, Koyilandy. The respondents in the execution petition are the petitioners in the revision. The suit was filed for an injunction restraining the defendants in the suit from entering into the plaint schedule property. There was another suit for recovery of possession of a building situated in the plaint schedule property. Both suits were decreed by the Trial Court. In appeal, the first Appellate Court reversed the judgments of the Trial Court. But, this Court by judgment arid decree dated 17.11.1987 restored the decree of the Trial Court.

(2.) As already stated, the decree in O.S. 2/1974 was for an injunction restraining the defendants from entering into the plaint schedule property. The case of the plaintiff was that violating the injunction order, the legal representatives of the defendants encroached into the plaint schedule property and constructed a basement of a house in that property. The defendants have also cut and removed a Jack - fruit tree and a Pathiri tree from that property. The action of the respondents in the E.P. was a clear violation of the decree passed against them. This was countered by the defendants by stating that they are the legal representatives of the original defendant. The decree passed was a personal decree. Hence it cannot be executed against the legal heirs of the first defendant. Necessary pleadings to execute a decree for injunction is not made in the petition. There was a house in the plaint schedule property, which was in the possession of the defendants till a decree was passed in O.S. 2/1974. According to the petitioners, both the suits were governed by Benami Transactions (Prohibition) Act, hereinafter referred to as "the Act". As a matter of fact, the execution petition in O.S. 72/1974 was dismissed because it was a benami transaction. The petitioners further contended that the present E.P. is also barred by the Act and hence further proceedings cannot be proceeded with. On a consideration of the objections, the Court below rejected the objections and allowed the petition. It is against that the present revision is filed.

(3.) So far as the first contention that they are legal heirs of the original defendant and therefore, not bound by the decree is concerned, the decision of this Court reported in Rajappan v. Sankaran Sudhakaran, 1997 (1) KLT 748 , is answer to the above argument. Thus the petitioners cannot contend that because they are legal heirs of original defendant the decree is not binding on them.