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2014 DIGILAW 756 (KAR)

Gowri v. Prabhakara Adiga

2014-08-26

ANAND BYRAREDDY

body2014
Judgment : 1. The facts of the case are as follows: 2. The petitioners are the widow and children of one Divira Bolu. The respondent is said to have filed a civil suit against Divira Bolu, seeking a permanent injunction against him from interfering with property described as follows : "Description of the property situate in Kollur Village of Kundapura Taluk Mooli right Sy. No. SD No. Kissam Extent 32 5P1-P2 Converted to Non- 0.53 agricultural purpose Boundaries: East by: Sy.No.32/2 of Plaintiff South by: Portion of this SD sold to Surendra Shetty West by: Plot sold to Surendra Shetty North by: Sy.No.32/4 of Plaintiff, plot of Ayyappa Nair and V.V.Iyer" The suit had been contested by Bolu during his lifetime. The suit, however, was decreed as prayed for. Incidentally, the prayer in the suit was as follows : "VI. Prayer: The Plaintiff therefore prays for a decree and judgment in his favour and against the Defendant. (1) For a permanent injunction restraining the Defendant from entering upon the suit 'A' property and from interfering with Plaintiff's peaceful possession and enjoyment of the same..." The judgment and decree was dated 13.9.2012. It transpires that Bolu died some time after the judgment was delivered. In April, 2014, the respondent is said to have filed an execution petition against these petitioners, in their capacity as the legal representatives of the deceased Bolu, on the ground that they are interfering with his property, and that the judgment and decree against Bolu, would also be binding on them. Upon receipt of notice, the petitioners are said to have engaged counsel who had entered appearance in the execution petition. It is stated that the counsel sought to assert before the court that the present petitioners had not interfered with the property of the respondent and in any event, were not bound by the judgment and decree, which was personal to Bolu, and hence the execution petition was not maintainable. The executing court had then heard the counsel for the parties on the issue whether the judgment and decree in the suit, was binding on the legal representatives of the defendant and answered the question in the affirmative and is said to have directed the petitioners to file an undertaking that they would not interfere with the plaintiff's property. The executing court had then heard the counsel for the parties on the issue whether the judgment and decree in the suit, was binding on the legal representatives of the defendant and answered the question in the affirmative and is said to have directed the petitioners to file an undertaking that they would not interfere with the plaintiff's property. When the counsel for the present petitioners, had sought to assert that the petitioners were not bound to furnish any such undertaking, this is said to have provoked the counsel for the decree holder to seek that the petitioners be arrested for disobedience. The court below had then posted the matter for enquiry to enable the decree holder to establish that there was a breach of the injunction. It is in that background that the present petition was filed. This court had stayed all further proceedings. 3. The learned counsel for the petitioners contends that the suit prayer was restricted to the defendant alone. It is hence inexplicable that the decree is sought to be executed against the petitioners, who were not parties to the suit and are certainly not bound by the decree, which was personal to the deceased defendant. It is contended that the finding of the executing court that in terms of Section 146 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity), the petitioners are also bound by the judgment and decree is an incorrect and unfair interpretation and seeks that the said finding be set aside - as it is now evident that the court below seeks to take coercive measures against the petitioners to enforce the decree against them. It is pointed out that the deceased defendant was not sued in his capacity as the kartha or the 'yajaman' of his family. In fact, the petitioners are not members of a joint family, therefore, there is no basis to hold that the petitioners are bound by the judgment and decree. 4. On the other hand, the learned counsel for the respondent seeks to justify the findings and the order of the court below. 5. In the above facts and circumstances, the point for consideration before this court is whether the judgment and decree against the deceased husband of the first petitioner was binding on the present petitioners. 4. On the other hand, the learned counsel for the respondent seeks to justify the findings and the order of the court below. 5. In the above facts and circumstances, the point for consideration before this court is whether the judgment and decree against the deceased husband of the first petitioner was binding on the present petitioners. It is the admitted case of the respondent that the deceased Bolu, earlier owned lands adjoining the suit property. He had however, sold the same to third-parties. It is further alleged that Bolu was keen to purchase the suit property and had approached the plaintiff with an offer to purchase the same, as it was negated - he had developed animosity and started to interfere with the suit property and sought to harass the plaintiff, which had lead to the filing of the suit. In the suit, Bolu had filed a written statement claiming that the plaintiff was a stranger to the suit property and that it was in fact, a portion of land bearing Survey No.32/2 measuring 2.41 acre and that the said entire extent was in the possession of himself and his brothers. He did not, however, lead evidence to establish this claim and accordingly, the suit had been decreed as prayed for. As expressed in the case of Chothy Theyathan v. John Thomas, AIR 1997 Kerala 249, and reiterated in Rajappan v. Sankaran Sudhakaran, AIR 1997 Kerala 315, generally a decree for prohibitory injunction restrains a person from doing something and in that sense, it could be said to be personal, and it cannot always be considered to operate merely against a person. In a case where the decree restrains a judgment debtor from doing something in his own land to the detriment of the decree holder or in derogation of a right claimed by the judgment debtor to enjoy his own property as an owner, the decree could not be understood as merely personal and not binding on the representative or assignee of the judgment debtor in relation to the property in respect of which it is obtained. As for example, a decree restraining an adjoining owner of land from blasting rock in his property, would bind his successors. This is on a principle of public policy that there shall be no second litigation in respect of the same right and the same property. As for example, a decree restraining an adjoining owner of land from blasting rock in his property, would bind his successors. This is on a principle of public policy that there shall be no second litigation in respect of the same right and the same property. To uphold a contention that an assignee from the judgment debtor could, with impunity, continue to blast rock, would jettison the very concept of finality of litigation, the concept of merger of litigation, the concept of merger of the cause of action and the principle of lis pendens -all principles of public policy. It cannot be the policy of law that every time an assignment of the subject property takes place, the decree holder should institute a fresh suit against the assignee so as to prevent him from continuing the same mischief as committed by the judgment debtor under whom he claims. It is settled law that an assignee or legal representative is bound by the decree obtained against the assignor or the predecessor-in-interest. This is evident from the policy underlining the several procedural rules, as recognized under Section 146, Order XXI Rule 16 and the Explanation thereto, Section 11 and Section 50 of the CPC as well as Section 52 of the Transfer of Property Act, 1882 (Hereinafter referred to as the 'TP Act', for brevity). Section 146 CPC provides that proceedings that may be taken against any person, could be taken against any person claiming under him. An assignee of property from the decree holder could execute the decree without reference to Order XXI Rule 16 CPC, by invoking Section 146. The Supreme Court, in the decision in Zila Singh V. Hazari, AIR 1979 SC 1066 , has held that even in the case of pre-emption decree, the decree could be executed by an assignee of the property in view of Section 146 of the Code of Civil Procedure. The Supreme Court referred to the decision in Jugalkishore Saraf V. Rao Cotton Co. Ltd., 1955 SCR 1369 , ( AIR 1955 SC 376 ), which was a case of assignment of a debt wherein it was held that the assignee of the debt could execute the decree obtained by the assignor of the debt by invoking Section 146 of the Code of Civil Procedure. Ltd., 1955 SCR 1369 , ( AIR 1955 SC 376 ), which was a case of assignment of a debt wherein it was held that the assignee of the debt could execute the decree obtained by the assignor of the debt by invoking Section 146 of the Code of Civil Procedure. The Supreme Court also referred to the decision in Saila Bala Dassi v. Nirmala Sundari Dassi, 1958 SCR 1287 : ( AIR 1958 SC 394 ), wherein it was held that Section 146 of the Code was introduced for the first time in the Code with the object of facilitating the exercise of rights be persons in whom the rights came to be vested by devolution or assignment and being a beneficient provision, should be construed liberally so as to advance justice and not in a restricted or technical sense. The Supreme Court finally held that a decree for preemption could be enforced by the assignee of the property by recourse to Section 146 of the Code of Civil Procedure. While it is true that a decree for injunction compels personal obedience and in appropriate cases, would not be enforced against the legal representatives. This is subject to a qualification that when the injunction relates to doing or not doing something in property, that was the subject matter of an earlier suit and the act complained of was on the basis of ownership of the 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 is the object of Section 146, which is consistent with the principle of public policy embodied in Section 11 CPC and Section 52 of the TP Act. In the instant case on hand, though the defendant had claimed that he, along with his brothers, was in possession of the suit property, it is neither the case of the respondent, or the petitioners themselves, that they have any claim over the suit property or for that matter, in any adjacent property. Hence, in letter and spirit, the judgment and decree against the defendant would have no relevance to the petitioners and the same cannot be enforced against the petitioners. Hence, in letter and spirit, the judgment and decree against the defendant would have no relevance to the petitioners and the same cannot be enforced against the petitioners. Incidentally, two decisions of this Court in the case of Somnath Honnappa Bennalkar v. Bhimrao Subbarao Patil, ILR 1974 Karnataka 1506 and Harajesab v. Udachappa, ILR 1984 Kar.900, having expressed a different view than the above, is without reference to the scope of Section 146 CPC, as interpreted by the Apex Court. In the result, the writ petitions are allowed and the proceedings initiated against the petitioners, before the court below, are quashed.