AMRITLAL VADILAL Vs. KANTILAL LALBHAI

JUDGEMENT

(1.) This appeal arises out of the proceedings in execution of the decree in suit No. 158 of 1910 of the Subordinate Judge of Ahmedabad. The facts involved in this case are somewhat peculiar. A certain house was partitioned between the plaintiff and his co-owner one Mayabhai. The superstructure was allotted to the plaintiff and the ground-floor was allotted to Mayabhai in the year 1857. The building was burnt down in 1883. In 1897 Mayabhai sold his interest in the property to one Vadilal, the father of the appellant. In 1910, the plaintiff proposed to reconstruct the building and was prevented from doing by Vadilal. He then filed suit No. 158 of 1910 and obtained a decree establishing his right to build and directing the judgment-debator to make a foundation on the eastern boundary of the land (sic) perpetually restraining him from building higher than nine (sic) over the surface line of the cellar any superstructure, and restraining the judgment-debtor from offering any obstruction by himself or others to the plaintiff's performance of any acts necessary for building the upper storeys.

(2.) In execution of this decree the plaintiff was obstructed by Vadilal. The matter came to the High Court in Second Appeal No. 368 of 1925. The High Court held that the execution so far as the mandatory injunction was concerned was beyond time, but gave a declaration that the plaintiff-decree-holder should make a foundation on the eastern limit at his own expense and the judgment-debtor should not obstruct this being done, and the remaining operative part of the decree could be enforced in execution. When the plaintiff again resumed his building, he was opposed by the two sons of Vadilal, Amratlal and Chinubhai, on the ground that on September 3 4, 1926, in a partition between them and their father Vadilal, the ground-floor in question had come to their share, and that not being parties to the decree they were not bound by the injunction contained therein.

(3.) The learned Subordinate Judge on July 8, 1927, by his order, Exhibit 62, directed the decree-holder's pleader to decide whether it was necessary to bring Amratlal and Chinubhai, the sons of Vadilal, on the record as parties to the execution proceedings, On July 14 the plaintiff made an application that Amratlal and Ohinubhai, the sons of the judgment-debtor Vadilal and claiming under him, be made parties to the execution proceedings and the Commissioner be asked to proceed with execution of the decree.