ABDUL KARDAR HAJI HIROLI Vs. JUDAH JACOB COHEN

JUDGEMENT

(1.) THIS second appeal arises out of the appellate order dated November 13, 1964, passed by the Assistant Judge, Poona, in Civil Appeal No. 62 of 1964, whereby the learned Judge confirmed the trial Court's order granting the reliefs claimed by the respondents in Darkhast Application No. 1057 of 1963 and dismissed the appellants' appeal with costs.

(2.) THE short facts which need to be noticed arc as follows: In 1932 one S.M. Gujarathi was the owner of immovable property bearing No. 356 situated at Vallabhbhai Patel Road, Poona. One J.J. Cohen was the owner of the immovable property bearing No. 357 situated on the southern side of the property of S.M. Gujarathi. There were disputes between these two owners in connection with easements of light and air through the windows in their adjacent buildings. S.M. Gujarathi then filed Suit No. 116 of 1932 for certain injunctions and for enforcing rights of easements. That suit was ultimately carried to this Court in Second Appeal No. 198 of 1935. At the ultimate hearing in that second appeal on September 9, 1938, by consent and compromise between the parties, a decree was passed. The decree declares mutual rights of these two adjacent owners in connection with their easements of light and air through the windows in their buildings. It also declares right in favour of S.M. Gujarathi to reconstruct a building on his land in accordance with a sketch annexed to and also other provisions in the decree. In connection with the mutual covenants restraining each other given in the prior part of the decree, by Clause 6, the following provision was made: The expression 'the plaintiff and the defendant herein' shall include their heirs, legal representatives, executors, administrators and assigns and in the matter of injunction the said words shall also include their servants and the members of the family.

(3.) MR . Jape for the appellants has once again repeated in this Court the above contention on behalf of the appellants. His contention is that the appellants do not admit that the decree creates any covenants running with the land against the purchasers. Assuming, however, that the decree does create such covenants, there is no provision in the Code of Civil Procedure or otherwise in law which entitles the applicants -decree -holders to execute the above consent decree against the appellants who were never parties to the suit in which the decree was passed. Mr. Jape has in this connection referred to Sections 47 and 50 and the scheme of Order XXI of the Code of Civil Procedure. He has submitted that under Section 50 specific provision is made whereunder, after a judgment debtor dies before the decree is fully satisfied, the holder of the decree is authorised to apply to the Court to execute the decree against legal representatives of the deceased judgment -debtor. He has emphasised that under Sub -section (2) provision is made that even against a legal representative decree can be executed to the extent only to which the property of the judgment -debtor has come to his hands. Under Section 47, questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree are determined by the Court executing the decree and not by a .separate suit. Mr. Jape has contended that the phrase 'representative' in this section in effect is to include only legal representatives as denned in Section 2(11). of the Code. His contention is that 'legal representative' is a person who in law represents the estate of a deceased person and otherwise an intermeddler with such estate and cannot include third parties. Mr. Dalvi for the applicant has on the contrary emphasised that the phrase 'representatives' in Section 47 includes not only those who are denned as legal representatives in Section 2 of the Code but also all successors in interest of any of the parties to the suit including purchasers and assigns of such parties. In this connection, Mr. Dalvi has emphasised that S.M. Gujarathi, from whom the appellants have purchased the property, agreed in Clause 6 of the decree that the expression 'the plaintiff' in the decree would include his heirs, legal representatives, executors, administrators and assigns and also his servants and members of his family. Relying upon the provisions in Clause 6 of the decree, Mr. Dalvi contends that in this case in any event the appellants who are purchasers from S.M. Gujarathi should be held to be representatives within the meaning of Section 47 and the decree should be held to be executable as such against the appellants.