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1989 DIGILAW 170 (MAD)

Chinnammal v. Nagarathinammal

1989-03-07

K.M.NATARAJAN

body1989
Judgment :- This revision is directed against the order passed by the X Assistant Judge, City Civil Court, Madras, dismissing E. P. No. 1758 of 1981 in O. S. No. 1664 of 1959, filed by the revision petitioner on two grounds, namely, that the petitioner being a purchaser is not entitled to maintain the execution petition and therefore the decree for the relief of permanent injunction cannot be executed and further the decree for injunction runs with the land and cannot be executed by the purchaser. 2. As regards the first point, learned counsel for the respondent also conceded that in view of the provisions of Section 146, C.P.C. and the Explanation added to O.21, R.16, certainly the purchaser of the property which is the subject-matter of the decree, without assignment, can maintain the execution application. As regards the second contention whether the purchaser can maintain the execution petition for disobedience of the decree by injunction, learned counsel for the revision petitioner only submitted that even though there is no decision of this Court on this point, yet it cannot be said that it is a personal one as it affects the rights of parties which includes the immovable properties. On the other hand, learned counsel for the respondent drew the attention of this Court to a decision of the Karnataka High Court reported in Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil, 1974 ILR(Kant) 1506, where it was held as follows:- "That suit which was only one for a permanent injunction restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit property ended in a compromise decree in favour of the plaintiff Sitaram Desai. It is well settled that an injunction, being personal, does not run with the land, vide decision of this Court in Ramachandra Govinda Palekar v. Narayan Zampanna Sulebhavi, (Ex. S. A. 92 of 1968); Dahyabhai v. Bapalal, 1902 (26) ILR(Bom) 141; Jamesetji Manekji Kotval v. Hari Dayal, 1908 (32) ILR(Bom) 181; Abdul Kardar Haji Hiroli v. Mrs. Judah Jacob Comen, (1967) 69 Bom LR 749 and Attorney General v. Birmingham, Tame and Rea District Drainage Board, 1881 (17) Ch(D) 685. S. A. 92 of 1968); Dahyabhai v. Bapalal, 1902 (26) ILR(Bom) 141; Jamesetji Manekji Kotval v. Hari Dayal, 1908 (32) ILR(Bom) 181; Abdul Kardar Haji Hiroli v. Mrs. Judah Jacob Comen, (1967) 69 Bom LR 749 and Attorney General v. Birmingham, Tame and Rea District Drainage Board, 1881 (17) Ch(D) 685. The compromise decree of injunction passed in O. S. No. 52 of 1967 being personal to Sitaram Desai and not running with the land, the appellant did not acquire a right to execute the decree by virtue of the sale and assignment in his favour. The compromise decree of injunction being personal to Sitaram Desai, the same could not be validly assigned in favour of the appellant. A similar question arose for consideration in the case reported in Jamsetji Manekji Kotval v. Hari Dayal, 1908 (32) ILR(Bom) 181. In that case, after the plaintiff obtained a decree of injunction against the defendant, sold his land. The purchaser who was also obstructed, brought his own suit for an injunction in terms similar to that formerly obtained by his vendor. An objection was raised to the maintainability of the suit on the ground that the only remedy of the purchaser was to execute the previous decree obtained by his vendor and not to institute a fresh suit. It is no doubt true that in the case there was not assignment of the decree of injunction by the original holder. But, it is clear from the judgment rendered by Chief Justice, Jenkins that the Court came to the conclusion that the proper remedy of the purchaser was to file a fresh suit, as he did in that case, and not to execute the decree obtained by his vendor on the ground that an injunction does not run with the land. I respectfully agree with the principle laid down in the said decision." * 3. The Court below also relied on the decision of the Bombay High Court reported in Jamsetji Manekji Kotval v. Hari Dayal, 1908 (32) ILR(Bom) 181, wherein it was held that an injunction does not run with the land and therefore in the circumstances of the case, there was no bar to the plaintiff's suit. The Court below also relied on the decision of the Bombay High Court reported in Jamsetji Manekji Kotval v. Hari Dayal, 1908 (32) ILR(Bom) 181, wherein it was held that an injunction does not run with the land and therefore in the circumstances of the case, there was no bar to the plaintiff's suit. Learned-counsel for the respondent also drew my attention to a decision of this Court reported in Mallammal v. Marimuthu Boyan, (1969) 2 Mad LJ 482, the head note of which runs as follows: "While the machinery and remedy provided under sub-section (1) of Rule 32 of Order 21 of the Code of Civil Procedure, would cover cases of both prohibitory and mandatory injunctions sub-rule (5) of the said rule would apply only to cases of mandatory injunction because it speaks of a positive act to be done by the judgment-debtor under the decree. It would not apply to a prohibitory injunction restraining the judgment-debtor from interfering with the plaintiff's right to way. The remedy provided under sub-rule (1) of detention in the civil prison or attchment of property would be effective in normal cases. But if it proves to be ineffective the decreeholder would have to file a fresh suit for removal of obstruction. In execution of a decree granting a prohibitory injunction the Court cannot give any direction to the decree-holder to apply for removal of obstruction or have any positive act done at the cost of the judgment-debtor. The only remedy of the holder of a decree granting a prohibitory injunction is to resort to Order 21, Rule 32(1) and not sub-rule (5)" * The same view was taken in Ondipudur Weavers Co-operative Production and Sales Society Ltd. v. Velumani (1977) 2 Mad LJ 19. It is clear from the ratio laid own in the above decisions that a purchaser can file only a fresh suit and cannot execute the decree for injunction. Learned counsel for the petitioner relied on a decision reported in Padmanabhan v. Sulaiman Kunju Ahamed, 1987 AIR(Ker) 125 where the injunction assigned was executed. But, on going through the said decision, I do not find that such a question was raised in that case. Learned counsel for the petitioner relied on a decision reported in Padmanabhan v. Sulaiman Kunju Ahamed, 1987 AIR(Ker) 125 where the injunction assigned was executed. But, on going through the said decision, I do not find that such a question was raised in that case. But it was held that Explanation to Rule 16 of O.21, C.P.C. makes it clear that a transferee of rights in the property, which is the subjectmatter of the suit, can apply for execution of the decree without a separate assignment of the decree as required by the rule and as the decree as such is not assigned but the assignments iil favour of the petitioners cover the property decreed, they can very well execute the decree. That decision is not helpful to the case of the revision petitioner in any way. 4. In view of the ratio laid down in the above decisions, I have no hesitation in holding that the executing Court is perfectly correct in dismissing the application on the ground that the decre for injunction does not run with the land and that it is a personal one and that the purchaser cannot maintain the execution petition. On this ground alone, the order passed by the Court below is confirmed. In the result, the revision fails and stands dismissed. There will be no order as to costs. However, the revision petitioner is at liberty to file a fresh suit on the same cause of action, if so advised.