Rajappan v. Sankaran Sudhakaran — 1997 DIGILAW 146 (KER)

Judgment :- Balasubramanyan, J. This revision is by the legal representatives of the second judgment debtor in O.S. No. 227 of 1975 on the file of the Munsiff' s Court of Punaloor. The respondent-decree holder obtained a decree against the second judgment debtor, the father of the revision petitioners, their brother who figured as the first judgment debtor, and their mother who figured as the 3rd judgment debtor for a perpetual injunction restraining the judgment debtors from trespassing into the decree schedule property, taking income therefrom, destroying the boundaries thereof and from interfering with the right of the decree holder to take income from the property and from in any manner causing disturbance to his possession. The Execution Petition, E.P. 118 of 1985 was filed against judgment debtors 1 and 3 and the other legal representatives of the second judgment debtor, the father complaining that they had violated the decree granted to the decree holder. An objection was filed by the legal representatives of the second judgment debtor contending that since the decree was one for injunction the decree holder was not entitled to execute the decree against the legal representatives of the second judgment debtor. They also denied that they have done anything against the terms of the decree. 2. An enquiry was conducted by the executing Court in the execution petition. That court held that the legal representatives of the second judgment debtor were responsible for cutting a tree from the decree schedule property in violation of the decree. Observing that such violations of decree should be dealt with seriously the executing court issued a warrant for the arrest of the revision petitioners. It is this order that is challenged in revision by the legal representatives of the deceased second judgment debtor. 3. When the revision came up for hearing before the Single Judge, reliance was placed on the decision in Kathiyammakutly Umma v. Karappan (1988 (1) KLJ 411) by the decree holder and the decision in Makky Chandran v. Sudhakaran (CRP No. 2543 of 1984) by the judgment debtor on the question whether the decree could be executed against the legal representatives of the deceased judgment debtor. The learned Single Judge felt that there was a conflict in the views expressed in the two decisions referred to above and consequently adjourned this case for being heard by a Division Bench. The learned Single Judge felt that there was a conflict in the views expressed in the two decisions referred to above and consequently adjourned this case for being heard by a Division Bench. That is how this revision has come before us. 4. The contention on behalf of the legal representatives of the deceased judgment debtor is that even if the terms of the decree granted against the deceased is violated by his legal representatives, the decree holder is not entitled to approach the executing court for relief against them but will have to seek his remedies against the legal representatives elsewhere. It is contended that the enforcement of the decree could only be under S.50 of the Code of Civil Procedure. Only in a case where the judgment debtor himself had violated the decree it might be possible to proceed against the legal representatives for that act of violation by the judgment debtor himself. The position would be different when the violation itself is by the legal representatives of the deceased judgment debtor and in such a situation the executing court did not have the jurisdiction or authority to proceed with an execution against the legal representatives. Learned counsel for the decree holder on the other hand submitted that the dispute between the decree holder and the judgment debtors, who were the father, mother and brother of the revision petitioners was regarding the boundary between the properties of the two parties, that a decree had been passed determining the limits of the properties and relief had been granted to the decree holder, that in the nature of the decree which relates to immovable property it is binding not only on the judgment debtor but on his legal representatives who inherit the adjacent property belonging to the judgment debtor. It is submitted that it will be oppressive to hold that such a decree could not be executed against the legal representatives and a fresh suit has to be filed against the legal representatives to determine the identical question that was involved in the earlier litigation and in respect of which there was a conclusive determination by the decree. It is submitted that in any view, there should be a distinction between an injunction decree which did not relate to property and one which came into existence in view of the dispute relating to property and which relates to the property. It is submitted that in any view, there should be a distinction between an injunction decree which did not relate to property and one which came into existence in view of the dispute relating to property and which relates to the property. In the latter case, the decree for injunction had necessarily to be obeyed by those who inherited property of the judgment debtor and in case they failed to obey the decree, the executing court had the jurisdiction to execute the decree. 5. S.146 of the Code of Civil Procedure provides that any proceeding that may be taken by or against a person could be taken by or against any person claiming under him. The Supreme Court has held that S.146 of the Code must be construed liberally.. One of us had occasion to deal with the scheme of S.146 of the Code of Civil Procedure in the order in CRP 805 of 1995. In the face of S.146 of the Code, the judgment debtors cannot contend that they are not bound to obey the decree for injunction granted against their predecessor-in-interest restraining him from tampering with the boundary of the property or from entering the property of the decree holder or from committing any acts of waste therein. To permit such aplea would be to ignore the principle of public policy embodied in Ss.11 and 146 of the Code of Civil Procedure on the one hand and S.52 of the Transfer of Property Act on the other. The contention on behalf of the legal representatives of the judgment debtor is that the decree holder is bound to file another suit against them for the identical relief. In such a suit, can the legal representatives of the judgment debtor put forward a claim which has already been concluded by the decree against their predecessor-in¬interest? Can they say that the boundary had not been properly fixed in the earlier litigation and they are entitled to show that the between the properties lay elsewhere? According to us, they cannot. They to the suit but also persons who claim under the parties to the suit and are litigating under the same title. Can they say that the boundary had not been properly fixed in the earlier litigation and they are entitled to show that the between the properties lay elsewhere? According to us, they cannot. They to the suit but also persons who claim under the parties to the suit and are litigating under the same title. When we scrutinise the order in CRP 2543 of 1984 we find that S.146 of the Code has not been considered therein and some of the decisions relied on therein were decisions rendered prior to the introduction of S.146 into the Code of Civil Procedure. This aspect has also been dealt with in the order in CRP 805 of 1995 reported as Chothy Theyyathan v. John Thomas (1997 (1) KLT 464). As observed by the Supreme Court, there is no jurisdiction for whittling down the scope of S.146 of the Code and to insist that a fresh suit must be filed every time a stranger to the decree succeeds to the property of the judgment debtor in the prior litigation, who has suffered a decree. 6. It may be true that a decree for injunction compels personal obedience and in appropriate cases would not be enforced against the legal representatives. But we think that the said proposition must have a qualification and that qualification is that when the injunction relates to doing something or not doing something in a property that was the subject matter of the earlier suit and the act complained of was on the basis of ownership of an adjacent property or a right claimed in the property of the other side, then such a decree for injunction would be binding not only against the judgment debtor personally but all those who claim through or under him. This we understand is the object of S.146 of the Code of Civil Procedure. Considering the scope of that Section consistent with the principles of public policy as embodied in S.11 of the Code of Civil Procedure and S.52 of the Transfer of Property Act, we are of the view that the executing court was right in holding that the decree could be executed against the legal representatives. 7. Then the only question is whether the judgment debtors need be arrested as ordered by the Courts below. 7. Then the only question is whether the judgment debtors need be arrested as ordered by the Courts below. We think that the judgment debtor must be given an opportunity to avert the order for their arrest by compensating the plaintiff in a reasonable manner for their act of violation. While therefore, we maintain the order of the court below we order that the warrant issued by the court below need not be enforced on condition that the judgment debtors pay into the executing court towards compensation to the decree holder a sum of Rs. 5,000 within a period of 1 month from this date. If the said sum of Rs. 5000 is deposited, the same will be disbursed to the decree holder and further proceedings in the present Execution Petition will be terminated. In case the judgment debtors do not deposit the said amount within the time stipulated, the court below will enforce its order and issue the necessary further directions in the present execution petition itself. It is made clear that the decree holder would be entitled to move the executing court in case of any further violation of the decree by the judgment debtors and if such further violation is made, it will be dealt with by the executing court very seriously and on the basis of the ratio of this order that the decree is enforceable as against the additional judgment debtors as well. We therefore, confirm the order of the executing court with the modification that the judgment debtors are given an opportunity to compensate the decree holder for their violation and avert the enforcement of the present order for their arrest and on their failure to do so directing the executing court to proceed further and implement its order. Under the circumstances of the case, we make no order as to costs.