EVURU VENKATA SUBBAYYA Vs. SRISHTI VEERAYYA AND OTHERS

JUDGEMENT

(1.) This Letters Patent Appeal, filed on the grant of leave by our learned brother Kumarayya, J., involves the determination of the true scope and ambit of clause (5) of Rule 32 of Order 21 and Section 51 (e), Civil Procedure Code.

(2.) The brief facts which give rise to the question posed before us are as follows: The tank in the shrotriem village of Annasamudram, of which the respondents are the shrotriemdars, was in a state of disrepair and disuse for several years past. The bund had breaches and the source of the tank, "Gadi Vagu" would empty itself through two wide sluices. Because of these breaches water could not be trapped and it was not possible to have wet cultivation. The appellant who was the 1st plaintiff, and 4 others, plaintiffs 2 to 5, took on lease from the respondents the tank bed area and cultivated Virginia tobacco, which does not require much water. In the lease deed it was stated that the "lessees would be at liberty to let out water in tank bed area through sluices marked A and B in the plan attached to the plaint, which are no other than the two sluices through which the Gadi Vagu used to empty itself. Thereafter the plaintiffs expended moneys and prepared the land fit for cultivation. But the villagers started interfering with its cultivation by raising large earthern bunds at the sluices A and B and trapping water, which made it impossible for the plaintiffs to cultivate tobacco. The plaintiffs took proceedings under Section 144, Criminal Procedure Code and though they were successful to a certain extent, they could not get a permanent remedy, inasmuch as the two sluices had already been blocked by the earthern bunds. The plaintiffs thereafter filed a suit, O. S. No, 79/55, for the issue of a perpetual and a mandatory injunction, in the Court of the Subordinate Judge, Kurnool, against the respondents herein in a representative capacity, under Order 1, Rule 8, C. P. C. as representing the entire body of villagers both of Patha Annasamudram and Kotha Annasamudram. The suit was eventually decreed on 16-1-1957. It may be stated that from Paragraph 4 of the Judgment of the Subordinate Judge, it would appear that as a consequence of injunction orders passed in I. A. No. 675/55 Respondents 1 to 3 i.e., defendants 1 to 3 in the suit who are the elders of the two villages, had removed the bund which they had put up in the lands. But notwithstanding the fact that there was no bund at the time of the passing of the decree in O. S. No. 79/55 on 16-1-1957, there were mandatory directions given under that decree, the executability of which is now the subject matter of this appeal. The terms of the decree passed on 16-1-1957 are as below.

(3.) Mr. Suryanarayana for the appellant contends that Order 21, Rule 32 (5) applies both to prohibitory as well as mandatory injunctions and could be enforced personally against persons who are eo nomine parties in a representative suit. It is further urged that the appeal before Kumarayya, J., was competent inasmuch as the decree being a joint decree and respondents 2 and 4 before him having been served, the appeal was dismissed as against them on 18-9-1962, as such no appeal can be maintained against the rest of the respondents, which would result in a conflict of decrees. In support of this last contention, he has cited the decisions in State of Punjab v. Nathu Ram, A.I.R. 1962 Supreme Court 89; Ram Sarup v. Munshi, A.I.R. 1963 Supreme Court 553 and Union of India v. Shree Ram, A.I.R. 1965 Supreme Court 1531. Mr. Venkatarama Sastry, on the other hand, contends that before Kumarayya, J., objection was taken and that the decisions of the Supreme Court relied upon are inapplicable to appeals against decrees in execution where the principles of abatement do apply. If any of the judgment-debtors die served, he contends, the execution petition will be dismissed and there would be no bar to a fresh execution petition. In any case a reading of Order 22, Rules 11 and 12 would show that the provisions of that order do apply to execution proceedings and are only confined to suits and appeals against decrees in those suits. Rule 3 of Order 22 which deals with the procedure where one of several plaintiffs or defendants dies and Rule 4 which deals with the procedure in case of death of one of several defendants or of sole defendant, and Rule 8 which says that plaintiff's insolvency bars the suit, have been specifically excluded by Rule 12 from their application to proceedings in execution of a decree or order When Rule 11 states that in the application of Order 22 to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal, it also necessarily excludes the operation of the order to execution proceedings.