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2012 DIGILAW 91 (CAL)

Sunil Kumar Das v. Sushil Kumar Seth

2012-01-24

DIPANKAR DATTA

body2012
JUDGMENT : Dipankar Datta, J. Title Suit No. 496 of 1966 instituted before the learned Munsif, 2nd Court, Barasat for declaration of title, khas possession, mandatory and permanent injunction, and mesne profits by the plaintiffs (predecessors-in-interest of the opposite parties) against the defendant (predecessor-in-interest of the petitioners) was decreed on February 28, 1972, ex parte, with costs. While granting relief to the plaintiffs, the learned Munsif, inter alia, permanently restrained the defendant by a decree of perpetual injunction from creating any obstruction on "ka" schedule suit land. 2. Thereafter, transfer of the properties, forming subject matter of the suit, was effected by the decree-holders in favour of the opposite party. Upon such transfer being effected, the opposite parties levied execution of the decree. Title Execution Case No.29 of 1986, was registered. It was alleged that the petitioners had defied the decree of permanent injunction in respect of "ka" schedule suit land (Dag No.1008) by raising construction of a wall thereon, thereby obstructing the opposite parties from enjoying the said property and also preventing them from opening their doors and windows. The execution case has since been transferred to the Court of the learned Civil Judge (Junior Division), Barackpore and renumbered as Title Execution Case No. 16 of 2001. 3. The petitioners by filing a written objection denied the material allegations made against them. It was their specific case that they had constructed the wall on a non-suit land i.e. Dag No. 1007 and not on the suit land i.e. Dag No.1008. It was also their contention that the disputed passage is not the suit property as described in schedule "ka" of the decree, but it is their own private passage which they have been using since time immemorial. 4. The learned Judge, on perusal of the evidence on record and upon hearing the parties, arrived at a finding that the opposite parties had stepped into the shoes of the original decree holders by purchasing "ka" schedule suit land and that had they acquired the right to execute the decree in respect of such property. He was of the further view, on examination of Exhibit 5 i.e. Deed No. 3237 of 1985 that there is existence of "ka" schedule property in Dag No.1008, being the suit land. He was of the further view, on examination of Exhibit 5 i.e. Deed No. 3237 of 1985 that there is existence of "ka" schedule property in Dag No.1008, being the suit land. It was observed that the contention urged by the petitioners had been considered by the trial Court while decreeing the suit and, therefore, it was not open to him to go behind the decree. From the initial report of the Advocate Commissioner who was appointed to conduct local inspection, the learned Judge found that the width of "ka" schedule suit land had been reduced to 3.5 ft. after construction of wall by the petitioners, whereas from the decree passed in the suit it is clear that "ka" schedule suit land was approximately 4 ft. wide and 68 ft. long. A clear finding was recorded that the petitioners had constructed a wall encroaching portion of "ka" schedule suit land. Exhibit 5A, being the final report of the Commissioner, revealed that the opposite parties were not in a position to open doors and windows due to the construction made by the petitioners and, therefore, it was held that the decree of perpetual injunction passed against the petitioners had been violated by them for which writ is required to be issued for enforcement of the same. The contention of the petitioners that the disputed property is not included in "ka" schedule suit land forming part of the decree but it is their own passage in Dag No.1007 was held not to be supported by Exhibit A or A/1, being certified copies of deeds tendered in evidence by them. 5. Accordingly, he passed an order on December 4, 2010 whereby a writ was issued for satisfaction of the decree of perpetual injunction passed in respect of "ka" schedule suit land restraining the petitioners from transferring their own property, as mentioned therein, to any third party for six months from date of the order or till the decree is satisfied, whichever is earlier. It was further ordered that if during the period of six months from date thereof the decree remains unsatisfied, the property of the petitioners would be liable to be sold on an application of the opposite parties and that the former shall attend the Court on June 5, 2011 for taking notice of the date that would be fixed for settling the terms of proclamation of sale. In addition to the order of attachment, the opposite parties were given the liberty to demolish the wall raised by the petitioners on "ka" schedule suit land after expiry of six months from the date of the order, if the decree remains unsatisfied during this period, as per the provisions of Order 21, Rule 32 (5) of the Code of Civil Procedure, and the cost of such demolition would be recoverable from the petitioners. 6. The order dated December 4, 2010 is the subject matter of challenge in the present revisional application under Article 227 of the Constitution. 7. Mr. Sabyasachi Bhattacharya, learned advocate for the petitioners raised three points in support of his contention that the order of the learned Judge of the executing Court suffers from error of jurisdiction and, therefore, is liable to be set aside. First, he urged that levy of execution by the opposite party is barred by limitation. The second point raised by him is that for resolving a dispute of the present nature, the suit properties ought to have been inspected by a survey passed Advocate Commissioner and the learned Judge ought not to have based his findings on the basis of a report of local inspection. The third and final contention is that the decree of perpetual injunction obtained by the original decree-holders is personal in nature not running with the land and, therefore, the execution proceeding at the instance of the opposite parties is not maintainable. According to him, the opposite parties being transferees of the suit properties cannot seek execution of the decree of perpetual injunction and their remedy lies in instituting a fresh suit. In support of such a contention, he relied on the decision reported in AIR 1990 Madras 249 (Chinnammal v. Nagarathinammal). He, accordingly, prayed that the order under challenge be set aside. 8. Mr. Ghosh, learned advocate for the opposite party opposed the revisional application. According to him, the first contention of Mr. Bhattacharya that the proceeding for execution is barred by limitation is misconceived having regard to the proviso to Article 136 of the Limitation Act. In so far as the second contention of Mr. 8. Mr. Ghosh, learned advocate for the opposite party opposed the revisional application. According to him, the first contention of Mr. Bhattacharya that the proceeding for execution is barred by limitation is misconceived having regard to the proviso to Article 136 of the Limitation Act. In so far as the second contention of Mr. Bhattacharya is concerned, it was submitted that neither was the point that a local inspection would not suffice but a local investigation ought to be ordered was taken before the learned Judge nor has any ground been raised in the revisional application that the learned Judge could not have passed the order under challenge without appointing a survey passed Advocate Commissioner. Even otherwise, he contends that the report of the Commissioner conducting local inspection was sufficient to enable the learned Judge to arrive at a proper finding and, therefore, the Court ought to be loath to entertain the grievance voiced by Mr. Bhattacharya. Answering the last contention of his adversary, Mr. Ghosh contented that execution proceeding at the instance of the opposite parties is clearly maintainable having regard to the provisions of Section 146 and Order 21, Rule 16 of the Code read with Order 21, Rule 32 thereof. In support of his contention, Mr. Ghosh relied on the decision of the Supreme Court reported in AIR 1979 SC 1066 (Zila Singh and ors. v. Hazari and ors.) as well as decisions of the various High Courts reported in 1980 (2) CHN 316 (Krishna Mohan Naskar v. Nishikanta Naskar), AIR 1986 Allahabad 9 (Harihar Pandey v. Mongala Prasad Singh), AIR 1987 Kerala 125 (Padmanabhan Pillai and anr. v. Sulaiman Kunju Ahamed Koya and ors.), AIR 1989 Kerala 193 (Kathiyammakutty Umma v. Thalakkadath Kattil Karappan) and AIR 1997 Kerala 249 (Chothy Theyyathan v. John Thomas). He thus prayed for dismissal of the revisional application. 9. In reply, Mr. Bhattacharya submitted that he would not press the point of limitation. However, he reiterated the other two points. He further made reference to Section 50 of the Code, which envisages continuation of proceedings for execution against the legal representative of a deceased judgment-debtor. He contended that none of the decisions cited by Mr. 9. In reply, Mr. Bhattacharya submitted that he would not press the point of limitation. However, he reiterated the other two points. He further made reference to Section 50 of the Code, which envisages continuation of proceedings for execution against the legal representative of a deceased judgment-debtor. He contended that none of the decisions cited by Mr. Ghosh are authorities for the proposition that execution proceeding would be maintainable at the instance of a transferee of the property in the suit, which was decreed prior to the transfer being effected, and that such transferee can avail the benefit as a legal representative claiming under the decree-holder. 10. I have heard learned advocates for the parties at length and considered the decisions cited at the bar. 11. Since Mr. Bhattacharya did not press the point of limitation ultimately and rightly so, it does not call for any further discussion. 12. I do not see reason to upset the order impugned on the ground that the learned Judge of the executing Court ought to have appointed a survey passed Advocate Commissioner for conducting local investigation instead of local inspection. It was absolutely a matter for the learned Judge to decide whether or not a local inspection would suffice. In his discretion, he directed a local inspection to be conducted and has proceeded in the light of the report of inspection. If indeed the petitioners considered themselves aggrieved by reason of the learned Judge ordering a local inspection, they could have challenged the order contemporaneously. They did not and acquiesced in local inspection of the decretal property. Mr. Ghosh also seems to be right that no ground was urged in the revisional application in this behalf. Even if the learned Judge had committed an error in ordering local inspection instead of local investigation, which of course has not been demonstrated by Mr. They did not and acquiesced in local inspection of the decretal property. Mr. Ghosh also seems to be right that no ground was urged in the revisional application in this behalf. Even if the learned Judge had committed an error in ordering local inspection instead of local investigation, which of course has not been demonstrated by Mr. Bhattacharya to have been committed by the learned Judge, such an order may amount to an error within the limits of his jurisdiction but can not be branded as perverse or an act beyond the bounds of his authority or a dereliction of duty on his part or a flagrant abuse of the fundamental principles of law and justice, which are the limited grounds on which the correctional jurisdiction of the Court under Article 227 may be exercised [see (2010) 9 SCC 385 : Jai Singh v. Municipal Corporation of Delhi & ors.]. The contention is without merit and stands overruled. 13. Now, the final point raised by Mr. Bhattacharya would require consideration. It is contended that the decree of perpetual injunction being personal to the plaintiffs and not running with the land, the opposite parties did not acquire any right to execute such decree. 14. Before I delve deep to decide the same, I have reminded myself of the age old principles that have stood the test of time. An injunction, in its very nature, is a remedy against an individual, it will be issued only in respect of acts committed by him against whom it is sought to be enforced. The operation and effect of a final injunction is to perpetually inhibit a defendant from the commission of the act enjoined, and in determining whether the operation of an injunction has been interfered with, regard must be had to the terms of the injunction itself. Grant of injunction being justly regarded as one of the highest prerogatives of Courts of equity, the most exact and implicit obedience is required from those against whom the mandate of the Court is directed. The jurisdiction to grant perpetual injunction is founded on the equity of relieving a man from the necessity of bringing action after action for every violation of his right and of finally quieting the right, after a case has received such full decision as entitles the plaintiff to be protected against further trials of that right. 15. The jurisdiction to grant perpetual injunction is founded on the equity of relieving a man from the necessity of bringing action after action for every violation of his right and of finally quieting the right, after a case has received such full decision as entitles the plaintiff to be protected against further trials of that right. 15. To appreciate the point raised by Mr. Bhattacharya that the application filed by the opposite parties is not maintainable, the first and foremost provision of the Code that would exercise my consideration is Section 146 (providing for carriage of proceedings by or against representatives). Proper interpretation of Section 146 of the Code would, however, necessitate that Order 21, Rule 16 of the Code (providing for levy of execution by the transferee of a decree) be considered together, having regard to the opening words of the former provision of law. 16. Section 146 of the Code permits of proceedings to be taken or application made by a person claiming under a person if the latter could have taken such proceedings or made an application, subject to the caveat that such proceedings or application is not barred by the provisions of the Code or any other law for the time being in force. 17. Reading Section 146 of the Code, it can safely be concluded that a person claiming under a party to litigation is one who may have succeeded to the position of the latter or has acquired from him, subsequent to commencement of the litigation, interest in the subject matter. The expression "claiming under him" is wide enough and takes within its sweep cases of creation, devolution or assignment of interest as specified in Order 22, Rule 10 . Such acquisition of interest may be either by an act of parties or by operation of law. A purchaser of the suit property from the decree 10 holder can definitely be said to be a person claiming under the latter in terms of Section 146. 18. However, applicability of Section 146 must be preceded by fulfilment of the other condition that the Code or any other law for the time being in force should not have provided otherwise. 19. 18. However, applicability of Section 146 must be preceded by fulfilment of the other condition that the Code or any other law for the time being in force should not have provided otherwise. 19. Order 21, Rule 16 of the Code is a provision that enables the Court to entertain an application for execution of a decree, which is at the instance of an assignee by a transfer of the decree. The assignment may either be in writing or by operation of law. If such an application is made to the Court, it is obliged to issue notice to the judgment-debtor as well as the transferor of the decree and the decree cannot be executed until the Court hears their objections, if any, in respect of such execution. 20. Explanation to Rule 16, inserted by way of amendment with effect from February 1, 1977, however, makes the position clear that Rule 16 would not affect the provisions of Section 146 and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by Rule 16. Thus, the specific bar in Rule 16 has been diluted to substantial extent by the explanation that has been inserted providing legislative recognition of the view that even without a transfer of the decree by assignment, one who steps in the shoes of the decree-holder, may file an application for executing the decree. 21. Section 146 of the Code has been judicially interpreted by the Supreme Court in a catena of decisions. I would refer to few of them. 22. The parent decision is reported in AIR 1955 SC 376 : Jugal Kishore Saraf v. M/s. Raw Cotton Co. Ltd. It follows from the reasoning in the judgment delivered by Hon'ble S.R. Das, J. (as His Lordship then was) that for application of Section 146 of the Code, two conditions must be fulfilled viz. (i) the person who seeks to proceed or intends to make an application must be one claiming under a person who could have taken such proceeding or made an application; and (ii) the Code or any other law for the time being in force should not provide otherwise. It was further held therein that provisions of Section 146 of the Code apply to execution proceedings also. It was further held therein that provisions of Section 146 of the Code apply to execution proceedings also. It was also held therein that provisions of Order 21, Rule 16 does not expressly or by necessary implication, preclude a person, who claims to be entitled to the benefit of a decree under the decree holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application for execution which the person from whom he claims could have made. 23. In its next decision reported in AIR 1958 SC 394 (Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and anr.), the Supreme Court ruled that Section 146 was introduced with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment, and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense. The opening words of Section 146 i.e. "Save as otherwise provided ****" were held, following Jugal Kishore Saraf (supra), to operate as a bar to initiate proceedings which would be obnoxious to some other provision of the Code and that it stands to reason that if there is no specific provision of the Code or any law for the time being in force, no bar would come in the way of an applicant seeking to avail the benefit of Section 146. 24. In Zila Singh (supra), it appeared from the deed that there was no transfer of decree by assignment and, hence, Order 21, Rule 16 of the Code would not be attracted. The lands had been sold by the decree-holder after perfecting his title to the appellants before the Supreme Court. It was held that the appellants could be treated as persons claiming under the original pre-emptor decree-holder and if he could have made an application for execution of the decree as decree-holder, the appellants being the purchasers of lands from him would be claiming under him and, therefore, could maintain the application for execution under Section 146 of the Code. 25. Finally, reference in this connection may also be made to a not too old decision reported in (2004) 2 SCC 601 (Raj Kumar v. Sardari Lal & ors.). 25. Finally, reference in this connection may also be made to a not too old decision reported in (2004) 2 SCC 601 (Raj Kumar v. Sardari Lal & ors.). Paragraph 8 of the decision, which is relevant for a decision on this application, reads thus: "8. A lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognised in a different perspective by Rule 16 Order 21 CPC which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff decree-holder. The transferee may apply for execution of the decree of the court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. It is interesting to note that a provision like Section 146 CPC was not to be found in the preceding Code and was for the first time incorporated in CPC of 1908. In Order 21, Rule 16 also an explanation was inserted through amendment made by Act 104 of 1976 w.e.f. 1-2-1977, whereby the operation of Section 146 CPC was allowed to prevail independent of Order 21, Rule 16 CPC." (underlining for emphasis by me) 26. The aforesaid decisions provide a complete answer to the point that execution of the decree may be applied for by a transferee, if such execution could have been applied for by the transferor had he not effected any transfer. 27. The decision in Chinnammal (supra) supports the proposition urged by Mr. Bhattacharya on the premise that the decree for injunction does not run with the land and it being personal to the original decree-holders, the purchaser of the suit property cannot maintain the execution proceedings. 27. The decision in Chinnammal (supra) supports the proposition urged by Mr. Bhattacharya on the premise that the decree for injunction does not run with the land and it being personal to the original decree-holders, the purchaser of the suit property cannot maintain the execution proceedings. The decision appears to have been rendered taking into consideration a decision of the Karnataka High Court reported in ILR (1974) Kant 1506 (Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil), which in turn, relied on a couple of decisions of the Bombay High Court rendered prior to 1908 when there was no provision in the earlier Code akin to Section 146 and authority for the proposition that a decree for perpetual injunction being personal, though does not run with the land, yet, may be enforced against the legal representative of the judgment-debtor, was wanting. The decisions cited by Mr. Ghosh, and in particular the decision in Chothy Theyyathan (supra) has settled the position in this behalf. I agree with the learned Judge who decided Chothy Theyyathan (supra) that the decision in Somnath Honnappa Bennalkar (supra) does not refer to the provisions in Section 146 and Order 21 Rules 16 and 32 of the Code, and the decisions of the Bombay High Court would be of little relevance in deciding the question due to the change in law. An injunction is an order directed to a person and does not run with the land. There being no prohibition in the Code that a decree for perpetual injunction restraining the defendant from committing acts that the decree prohibits on a land may not be executed by any party other than the party who obtained such decree without a transfer of the decree by assignment thereof and the law that Section 146 of the Code ought to be construed liberally, the principle based on which Somnath Honnappa Bennalkar (supra) and Chinnammal (supra) were decided would not operate as a bar to entertaining an application of the nature filed by the opposite parties taking the aid provided by Section 146 of the Code. Chinnammal (supra) not having considered the decisions of the Supreme Court interpreting Section 146 of the Code that were available, ought to be and with respect is held not to lay down good law. 28. Chinnammal (supra) not having considered the decisions of the Supreme Court interpreting Section 146 of the Code that were available, ought to be and with respect is held not to lay down good law. 28. On facts and in the circumstances of the present case, it is essential to examine the nature of the decree passed. The decree restrained the petitioners from raising obstruction on "ka" schedule property. The decree passed by the trial Court, although is referable to "ka" schedule property, its essence is to prevent the judgment-debtors/petitioners from carrying on obstructive activities thereon to the prejudice of the decree-holders and such a decree binds the petitioners, being a restriction on enjoyment of "ka" schedule property to the detriment and prejudice of the opposite parties. It is, therefore, clear that the decree of perpetual injunction is directed to the petitioners. So long they honour the decree in the breach, the same operates against them in personam and then action could be and has been brought to restrain them. It is personal qua the petitioners, and is not one that runs with the land so as to render the same in executable. The application was, therefore, maintainable. 29. One could have contended prior to insertion of the explanation in Rule 16 Order 21 of the Code, that the Code bars the application filed by the opposite parties. However, such a contention after February 1, 1977 would be devoid of substance. No provision of the Code would operate as a bar to maintainability of the application filed by the opposite parties. 30. The residuary question is whether any law for the time being in force bars such application. 31. There are actions which abate on the principle 'actio personalis moritur cum persona' i.e. a personal action dies with the death of a person to the cause of action. The maxim, as held by the Supreme Court in its decision reported in AIR 1967 SC 1124 : Girijanandini Devi v. Bijendra Narain Choudhary, has limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault, or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault, or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. Its applicability to a large extent depends on the facts of each case and nature of the relief claimed. Having regard to broad interpretation of Section 146 of the Code by the Supreme Court and the limited application of 'actio personalis moritur cum persona' as noticed above, I have no hesitation to hold that causes of action, - except those that die with the death of the person in which case Section 146 would not apply and the cause of action ought to be allowed to rest, - must ordinarily be held to survive to the heirs or representatives unless the exceptional circumstance is proved to exist. The decree, for which execution has been levied in the present case, arises out of a suit for property and the maxim would have no application in such an action. 32. It is thus clear that the application filed by the opposite party is maintainable and no provision of the Code or any law for the time being in force bars it. The order passed on such application also appears to be just and proper, on facts and in the circumstances. 33. In the result, the order impugned is upheld and the revisional application stands dismissed without order for costs. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.