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2006 DIGILAW 1921 (MAD)

N. Srinivasa Chettiar v. Jagannathababu & Others

2006-08-01

M.JEYAPAUL

body2006
Judgment :- (Civil Revision Petition filed against the order dated 15.9.2005 made in EP S.R. No.6694 of 2005 on the file of the Principal District Judge, Kancheepuram, as stated therein.) This petition is filed by the decree holder/plaintiff in EP SR No.6694/05 in O.S. No.23/84 against the order of rejection, passed by the learned Principal District Munsif, Kancheepuram, on the execution petition laid as against the legal representatives of the deceased first defendant and also the subsequent purchasers of the property in question. 2. The petitioner/decree holder has obtained a decree for permanent injunction as against the first defendant. As the first defendant died, the 2nd and 3rd defendants, in their capacity as legal representatives of the first defendant, preferred an appeal in A.S. No.24/94 as against the decree for permanent injunction passed in favour of the plaintiff and the same was dismissed. The petitioner/decree holder has alleged in the execution proceedings that the first and 2nd respondents being the parties to the suit proceedings, are interfering with the peaceful possession and enjoyment of the petitioner. The third respondent being the power of attorney holder of the first and 2nd respondents and the 5th and 6th respondents being the sons of the 3rd respondent also extend their support to the illegal activities of the first and 2nd respondents. The 4th and 7th respondents, having sufficient knowledge of the permanent injunction granted in favour of the petitioner by the competent court, had interfered with the possession of the petitioner. It has been further submitted that the 8th and 9th respondents, who have purchased a part of the property in item No.5 have knowledge of the permanent injunction referred to above and started harassing and interfering with the peaceful possession of the petitioner. Therefore, the petitioner has filed the execution petition to punish all the respondents for contempt of court with imprisonment as envisaged under Order XXI Rule 32 of the Code of Civil Procedure. 3. The execution court, even before taking up the execution petition on file, rejected the entire execution petition as not maintainable, for execution of the decree could be sought only against the party to the suit and not against a third-party thereof. Hence, this civil revision petition has been preferred by the petitioner/decree holder. 4. 3. The execution court, even before taking up the execution petition on file, rejected the entire execution petition as not maintainable, for execution of the decree could be sought only against the party to the suit and not against a third-party thereof. Hence, this civil revision petition has been preferred by the petitioner/decree holder. 4. Learned counsel appearing for the petitioner would submit, referring to the provision under Section 146 of the Code of Civil Procedure, that as against the respondents 8 and 9, who are not parties to the suit proceedings, but have stepped into the shoes of the 2nd and 3rd respondents in respect of part of item No.5 of the suit property, the decree holder is entitled to lay execution as against them also. As regards the other respondents, who are not parties to the suit proceedings, learned counsel for the petitioner would submit that the petitioner could ask the court to enforce the decree for permanent injunction as against them also as they have started harassing and interfering with his peaceful possession. 5. Learned counsel for respondents 8 and 9 would submit that inasmuch as they are only purchasers of a part of the property in item No.5 subsequent to the decree, the decree holder cannot lay any execution petition as against them under Order XXI Rule 32 of the Code of Civil Procedure. 6. On a perusal of the records it is found that the first and 2nd respondents have participated in the trial proceedings following the death of their father, the first defendant in the suit. Therefore, as far as respondents 1 and 2 herein are concerned, they having suffered a decree for permanent injunction, will have to face the legal consequence in the execution petition laid by the decree holder. The execution court should not have rejected in toto the execution petition laid as against respondents 1 and 2. 7. Order XXI Rule 32 contemplates right to lay execution proceedings as against the party against whom a decree for injunction has been passed and such a person, who suffered a decree, though had an opportunity of obeying such a decree, wilfully failed and neglected to obey the same. 7. Order XXI Rule 32 contemplates right to lay execution proceedings as against the party against whom a decree for injunction has been passed and such a person, who suffered a decree, though had an opportunity of obeying such a decree, wilfully failed and neglected to obey the same. In this case, it is found that the decree holder has alleged in the execution petition that the 3rd respondent being the power of attorney agent of respondents 1 and 2 and respondents 5 and 6 being the sons of the 3rd respondent and the 4th respondent in his individual capacity, supported the illegal activities of the first and 2nd respondent in disturbing the possession and enjoyment of the suit property. 8. Section 146 of the Code of Civil Procedure reads as follows :- "S.146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." The phrase "any proceeding" found in Section 146 of the Code of Civil Procedure obviously refers to the execution proceedings also. The proceeding as against a person claiming under the judgment debtor is also contemplated by implication in Section 146 of the Code of Civil Procedure, but not the persons, who independently interfere with the possession and enjoyment of the decree holder. Therefore, the decree holder cannot lay an execution petition as against respondents 3 to 7, who do not claim under the judgment debtor. As against them, a separate suit will have to be laid inviting necessary orders for protecting the possession of the decree holder. 9. As regards respondents 8 and 9 it is found that they, having purchased the property from the judgment debtors, stepped into their shoes and make a claim under such judgment debtors. Section 146 of the Code of Civil Procedure is very categoric that proceedings could be initiated as against such persons, who claim under the judgment debtors. 10. A Full Bench of this Court in Kodia Goundar & Another – Vs. - Velandi Goundar & Others reported in (S) AIR 1955 Madras 281 held thus:- "11. ...... Section 146 of the Code of Civil Procedure is very categoric that proceedings could be initiated as against such persons, who claim under the judgment debtors. 10. A Full Bench of this Court in Kodia Goundar & Another – Vs. - Velandi Goundar & Others reported in (S) AIR 1955 Madras 281 held thus:- "11. ...... This principles that a decree for injunction cannot be extended so as to render those who are not 'eonomine' defendants liable for disobedience of the decree is based on sound and equitable grounds. Before any person could be proceeded against personally for disobedience of a decree of court, it must be shown that he was bound personally by the decree and obliged to obey such a decree. To entitle the decree-holder therefore to proceed against such persons who are not parties on record the injunction must be revived against them, which must be by a separate suit and in such a suit an opportunity will be afforded to them to raise appropriate defences. Without a revival therefore of the decree for injunction against these other persons, no proceedings in pursuance of the decree could be started against them." That was a case where a decree was obtained in a representative suit instituted under Order I Rule 8 of the Code of Civil Procedure against persons, who were not 'eonomine' parties to the decree. The Full Bench of this Court held that no execution proceedings would lie against the persons, who are not 'eonomine parties to a decree obtained in a representative suit instituted under Order I Rule 8 of the Code of Civil Procedure. The aforesaid principles laid down by the Full Bench of this Court does not apply to the facts and circumstances of this case where the question that has arisen for consideration is as to whether the purchasers from the judgment debtors would be liable to face execution at the instance of the decree holder. 11. The aforesaid principles laid down by the Full Bench of this Court does not apply to the facts and circumstances of this case where the question that has arisen for consideration is as to whether the purchasers from the judgment debtors would be liable to face execution at the instance of the decree holder. 11. Therefore, this Court is of the considered opinion that as per Section 146 of the Code of Civil Procedure, a decree holder can maintain an execution petition to enforce the decree for permanent injunction obtained by him not only as against the judgment debtors, namely, respondents 1 and 2, but also as against the purchasers of the property in question from the judgment debtors, namely, respondents 8 and 9, as they claim their right under the judgment debtors. No separate decree for permanent injunction need be obtained as against them. 12. In the result, the order of rejection passed by the execution court in EP SR No.6694/05 in O.S. No.23/84 is set aside and the execution court is directed to take EP SR No.6694/05 in O.S. No.23/84 on its file as against respondents 1, 2, 8 and 9 herein and deal with the execution proceedings in accordance with law without being influenced by any of the observations made by this Court for the purpose of disposal of this civil revision petition. This civil revision petition stands disposed of in the above terms. Consequently, connected miscellaneous petition is closed.