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2008 DIGILAW 687 (AP)

Kalpuri Ellamma v. Nellutla Venkata Lakshmi

2008-08-27

L.NARASIMHA REDDY

body2008
ORDER :- The respondent filed OS No.455 of 1985 in the Court of Principal Junior Civil Judge, Warangal, against one Sri Rajamallu, for the relief of perpetual injunction, in respect of the suit schedule property. The suit was decreed on 14.10.1996. Aggrieved thereby, the sole defendant filed A.8.No.71 of 1996 in the Court of District Judge, Warangal. The appeal was dismissed as abated, since Rajamallu died on 2.9.1998 during the pendency of the appeal. The petitioners herein viz., the wife and the daughter of Rajamallu, filed IA No.144 of 2003 before the District Court, under Section 5 of the Limitation Act, to condone the delay of 1440 days in presenting the application to set aside the order of dismissal of the appeal. The application was dismissed on 19.12.2003 and CRP ,No.4108 of 2004 filed against it was also dismissed on 7.10.2004. 2. The respondent filed EP.No.1087 of 2002 alleging that the petitioners obstructed the construction of compound wall around the suit schedule property. The executing Court issued notice to the petitioners. Several objections were raised, including the maintainability of the EP against the legal representatives of the judgment-debtor straight away. The executing Court conducted enquiry and ultimately allowed the EP., through its order, dated 9.12.2004, directing detention of the petitioners in civil prison for a period of 10 days. The same is challenged in this writ petition. 3. Sri O. Manohar Reddy, learned Counsel for the petitioners submits that the EP was filed against the petitioners straight away and application was filed with a prayer to bring the legal representatives of the deceased-judgment- debtor on record. He further submits that the petitioners have obstructed the construction of compound wall, being under the impression that the decree passed against Rajamallu is not binding upon them and that they are entitled to use the 9 feet passage across the suit schedule property as an access to the main road. He also submits that the order passed by the executing Court is beyond the scope of its powers. 4. Sri. P.R. Prasad, learned Counsel for the respondent submits that when there is no dispute that the petitioners are the legal representatives of the deceased-judgment-debtor, there was no necessity for the respondent to file an application to bring the legal representatives on record. 4. Sri. P.R. Prasad, learned Counsel for the respondent submits that when there is no dispute that the petitioners are the legal representatives of the deceased-judgment-debtor, there was no necessity for the respondent to file an application to bring the legal representatives on record. He contends that the petitioners have categorically admitted their interference with the construction of compound wall and the executing Court was left with no alternative, except to direct their detention. He further contends that subsequent to the filing of the CRP., the petitioners have brought about constructions in violation of the decree and the same needs to be taken into account. 5. The decree in OS.No.445 of 1985 was passed against Rajamallu, the husband of the 1st petitioner and father of the 2nd petitioner. It was the one, for injunction simplicitor. The respondent complained that the petitioners herein obstructed the construction of compound wall. Before the executing Court, on behalf of the respondent, one Mr. Bhashar Rao deposed as PWI and Exs.A1 to A15 were marked. On behalf of the petitioners, RWs.1 to 3 were examined and Exs. B 1 to B4 were marked. The Executing Court recorded a finding to the effect that the petitioners interfered with the construction of cOll1pound wall. 6. The objection raised on behalf of the petitioners is as to the maintainability of the EP directly against them. It is no doubt true that the petitioners are not parties to the decree and they were not brought on record after the death of Rajamallu. Section 50 of CPC., however, permits institution of EP against the legal representatives also, in case, the judgment-debtor dies, before the decree has been satisfied. Only a rider is added to the effect that the liability of the legal representatives shall be limited to the estate, succeeded by him. The liability of a legal representative of a judgment debtor in a decree for perpetual injunction obviously needs to be limited to the extent of interference, which was restrained through such a decree. It is only such of the legal representatives, who defy the decree, that can be proceeded against. 7. Learned Counsel for the petitioners placed reliance upon Rule 22 of Order XXI CPC, in support of his contention that the executing Court ought to have insisted on independent application being filed to bring the petitioners on record, as legal representatives of the deceased-judgment-debtor. 7. Learned Counsel for the petitioners placed reliance upon Rule 22 of Order XXI CPC, in support of his contention that the executing Court ought to have insisted on independent application being filed to bring the petitioners on record, as legal representatives of the deceased-judgment-debtor. The provision reads as under: 22. Notice to show-cause against execution in certain cases.-(l) Where an application for execution is made-- (a) more than two years after the date of the decree; or (b) against the legal representatives of a party to the decree, or where an application is made for execution of a decree filed under the provisions of Section 44A, or (c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent. A perusal of this discloses that it only creates obligation on the part of the executing Court to issue notice to the judgment-debtor or the persons, against whom the decree is sought to be executed, in the three situations mentioned above. Otherwise, the execution of the decree can straight away be ordered, without issuing notice to the affected parties. From the provision, it is difficult to discern either that the decree holder is placed under obligation to file an independent application to bring the legal representatives of judgment-holder on record or that the executing Court must insist on such a step. In this case, the Executing Court did issue notice to the petitioners. 8. The executing Court recorded a specific finding to the effect that the petitioners have interfered with the construction of compound wall. The contention of the petitioners that they were under the impression that the decree is not binding upon them needs to be taken into account. Learned Counsel for the petitioners categorically submits that his clients do not, any more, intend to interfere with the construction of the compound wall and that they would abide by the decree. An affidavit is filed to that effect before this Court. In view of the same, the order under revision deserves to be set aside. 9. Learned Counsel for the respondent has brought to the notice of this Court that the constructions were made by the petitioners also during the pendency of the civil revision petition. He has also drawn the attention of this Court to various proceedings, such as appointment of Commissioner. 9. Learned Counsel for the respondent has brought to the notice of this Court that the constructions were made by the petitioners also during the pendency of the civil revision petition. He has also drawn the attention of this Court to various proceedings, such as appointment of Commissioner. However, this Court is of the view that any development, that is said to have taken place subsequent to the order under revision, cannot constitute the subject-matter of the EP. If the respondent feels that the petitioners have resorted to any acts or omissions, giving raise to fresh cause of action to file an EP., or to extend the scope of the pending EP., necessary steps are to be taken. This Court cannot discharge the functions of Executing Court. 10. For the foregoing reasons, the civil revision petition is allowed and the order under revision is set aside. It is directed that the petitioners shall not obstruct the construction of compound wall by the respondent and if they violate it, they shall be liable to be detained in a civil prison straight away, if the respondent proves such interference. It is also made clear that in case, the petitioners have violated the decree, in any other manner, it shall be open to the respondent to take necessary steps, in accordance with law. There shall be no order as to costs.