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2006 DIGILAW 846 (KAR)

G. M. VENKATAPPA v. ANJANAPPA

2006-10-21

N.K.PATIL

body2006
ORDER The petitioner being aggrieved by the order dated 0-8-2003 in Execution Petition No. 19 of 1995 on the file of the, Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Chikkaballapur presented the instant revision petition. 2. The petitioner herein had filed Ex. P. No. 19 of 1995 on the file of Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Chikkaballapur with a prayer to arrest and detain the respondents in civil prison and also for a direction to the Police to enforce the decree for permanent injunction by executing the judgment and decree in O.S. No. 67 of 1988. After receipt of summons from the Court below, the respondents have filed their objections to the main petition contending that the petition is not maintainable as the decree was passed placing the respondents exparte and the suit filed by the deceased father of the petitioner who is no more, is not maintainable. On the basis of the pleadings of the both the parties and• after hearing the learned Counsel appearing for the petitioner and• the learned Counsel for the respondents, the Execution Court has framed necessary points for consideration to the effect: (i) Whether the execution petition can be executed as against the respondents-judgment-debtors and through the petitioner as prayed for? and (ii) What order? After going through the judgment and pleadings of the parties and after hearing both the Counsels, the Execution Court has recorded a finding answering Point No.1 in the negative and Point No.2 as per the final order dismissed the execution petition by assigning reasons at paragraph 9 and by following the judgment of the Apex Court in Yashpal Singh v VIII Additional District Judge and Others!, stating that a decree under Order 21, Rule 32 can be executed as against the party who was the party to the suit and when the parties to the suit having obtained a decree, that party alone can file an execution petition and obtain a decree for injunction. Assailing the correctness of the impugned order passed by the Trial Court dated 6-8-2003 in Ex. P. No. 19 of 1995 on the file of the Principal Civil Judge (Junior Division) and Judicial Magistrate First' Class, Chikkaballapur, the petitioner presented the instant revision petition. 3. Assailing the correctness of the impugned order passed by the Trial Court dated 6-8-2003 in Ex. P. No. 19 of 1995 on the file of the Principal Civil Judge (Junior Division) and Judicial Magistrate First' Class, Chikkaballapur, the petitioner presented the instant revision petition. 3. The principal submission made by the learned Counsel appearing for the petitioner is that, the impugned order passed by the Trial Court is opposed to law, facts and evidence in the case and the Trial Court has committed illegality and the order impugned suffers from material irregularity in holding that the execution petition is not maintainable. To substantiate his case, he was quick to point out by placing reliance on the judgment •of the Division Bench of this Court in the case of Ramachandra v Laxmana Rao2, that the execution petition filed by the petitioner is maintainable and therefore, he submitted that the impugned order passed by the Trial Court is liable 'to be set .aside and the matter requires for fresh. consideration by the Trial Court. 4. 'per contra, the learned Counsel for the respondents taking me through the reasoning given by the Trial Court at paragraph 9 of the impugned order wherein, the Trial Court placing reliance on the judgment of the Supreme Court in the case of Yashpal Singh, wherein, the Apex Court has held that the execution petition can be filed as against the party who was a party to the suit and when the party having obtained a decree, that party can alone file an execution petition and obtain a decree for injunction and therefore, there was no error or illegality committed by the Trial Court in dismissing the petition filed by the petitioner. 5. Having heard the learned Counsel appearing for the petitioner and the learned Counsel for the respondents, it is manifest that the Trial Court has committed grave error much less irregularity in considering the provisions of Section 50 and Section 146 read with Order 21, Rule 32 pf the Civil Procedure Code, 1908. The grievance made out by the petitioner in the instant case is that the deceased father of the petitioner had filed a suit in O.S. No. 67 of 1988 in respect of the vacant premises consisting of front yard of the house bearing House List No. 100 measuring East-West 39' and North-South 44', situated in Unegal Village, Chikkaballapur Taluk. The grievance made out by the petitioner in the instant case is that the deceased father of the petitioner had filed a suit in O.S. No. 67 of 1988 in respect of the vacant premises consisting of front yard of the house bearing House List No. 100 measuring East-West 39' and North-South 44', situated in Unegal Village, Chikkaballapur Taluk. On the death of the first defendant, the first respondent-Anjanappa claims to have inherited the said property as a legal representative of deceased first defendant. When the matter came up for consideration before the Trial Court, the Trial Court after discussing the pleadings of both the parties and other relevant material available on the file, accepting the submission made by the learned Counsel for the respondents and placing reliance of the judgment of the Apex Court in the case of Yashpal Singh as referred to above, dismissed the execution' petition without reference to the subsequent judgment of the Apex Court made in the case of Muthukaruppa Pillai v Ganesan 1, wherein, in this case, the contention of the defendant-appellant before the Supreme Court was that the decree of permanent injunction obtained against him by the deceased-plaintiff with respect to his heritable and partible rights, cannot be executed by the legal representatives of the plaintiff on his death. Repelling this contention, the Supreme Court held thus: "2. ... It is claimed that the decree being personal, it could not have been executed by the respondent who claimed to be successor-in-interest of the plaintiff in the suit. The submission appears to be devoid of any merit. In the main suit, out of which these execution proceedings have arisen, it was clearly held by the High Court that the rights were heritable and partible. In view of this finding, it is not clear as to how can be appellant raise the argument of decree being personal in nature. Apart from that, the decree passed by the Trial Court, copy of which has been produced by the learned Counsel for the respondent, the authenticity of which is not disputed by the appellant, and which has been extracted earlier, clearly indicates that the injunction granted did not impose any such restriction expressly nor could it be impliedly held that it lapsed with the death of the plaintiff'. After careful reading of the well-settled principle laid down. After careful reading of the well-settled principle laid down. by the Apex Court in the case of Muthukaruppa Pillai, referred to above, that if the remedy of injunction granted by the decree is in respect of any heritable and partible right, it does not get extinguished with the death of a party thereto, but in ensures to the benefit of the legal heirs of the decree-holder, as also such a decree could be executed against the successor-in-interest of the deceased judgment-debtor as well. The law so laid down is fortified by another recent decision of the Supreme Court in Kanhaiya Lal v Babu Ram (dead) by L.Rs amd Another. Therefore, the Division Bench of this Court while dealing a similar question in Ramachandra v Laxmana Rao, while referring and adopting the observations made by the Supreme Court in the cases of Muthukaruppa Pillai and Kanhaiya Lal and several other judgments has held thus: "In the case in hand, the decree for permanent injunction being the one granted for protection of decree-holder's statutory easementary right of way appurtenant to his dominant heritage and annexed with the servient tenement of judgment-debtors, it is enforceable in law against the transferee judgment-debtor, he being the successor-in-interest of the original judgment-debtor. In other words, the transferee judgment-debtor is bound by the terms and directions of the decree in question and, therefore, the' decree is executable against him". 6. In the light of the ratio laid down by the Supreme Court in the case of Muthukaruppa Pillai, including the judgment of the Division Bench of this Court in the case of Ramachandra, I am of the considered view that at any stretch of imagination, the impugned order passed by the Trial Court cannot be sustainable and is liable to be set aside. 7. Having regard to the facts and circumstances of the case as stated above and taking into consideration the totality of the case in hand, the civil revision petition filed by the petitioner is allowed. The impugned order dated 6-8-2003 on the file of the Civil Judge (Junior Division), Chikkaballapur is hereby set aside. 7. Having regard to the facts and circumstances of the case as stated above and taking into consideration the totality of the case in hand, the civil revision petition filed by the petitioner is allowed. The impugned order dated 6-8-2003 on the file of the Civil Judge (Junior Division), Chikkaballapur is hereby set aside. The matter stands remitted to the Trial Court for reconsideration afresh for take appropriate decision in accordance with law, after affording opportunities to both the parties and in the light of the judgments of the Supreme Court and the Division Bench of this Court, referred to above and dispose of the matter, as expeditiously as possible on top priority, having regard to the fact that the matter is pending adjudication since several years.