Pavnesh Kumar v. Madho Ram Now Deceased Through His Lrs
2018-07-04
DHARAM CHAND CHAUDHARY
body2018
DigiLaw.ai
JUDGMENT Dharam Chand Chaudhary, J. - Heard further. 2. Order dated 18.01.2018 (Annexure P-6), whereby learned Civil Judge (Junior Division), Court No.1, Dharamshala has dismissed two applications filed for substitution of legal representatives of deceased defendants No. 1 and 4 in pending Civil Suit No.72/2014, is under challenge in this petition. 3. The matter besides on merits has also been heard on the question that in a suit for permanent prohibitory injunction, the legal representatives of a deceased defendant against whom there are no allegations of causing interference in the property in dispute need substitution or not. Such legal question, has been decided by the Apex Court in Prabhakara Adiga V. Gowri and others , (2017) 4 SCC 97 . The relevant extract of the judgment reads as follows:- "24. In Kathiyammakutty Umma v. Thalakkadath Kattil the High Court of Kerala has observed that where a decree for injunction is obtained against a sole judgment-debtor, restraining him from obstructing the plaintiff in erecting a fence on the boundary of his property, the decree can be executed against the legal representatives of the judgmentdebtor, if he dies. 25. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgmentdebtor. It is apparent from section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim "actio personalis moritur cum persona" is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives.
of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in section 50 CPC, such a decree can be executed against legal representatives." 4. The answer, therefore, is that in a suit for injunction, if ultimately decree passed, the same can even be executed against the legal representatives of deceased judgment debtor(s). 5. Now, if coming to the merits of the case, defendant No.1 Madho Ram, as per application registered as CMA No. 27/14 (Civil Suit No. 72/14) had expired on 1.8.2017 during the pendency of the suit in the trial Court and defendant No.4 Nand Kishore on 15.02.2016. Death certificate with respect to death of defendant No.1 has not been placed on record. Learned trial Court has dismissed both the applications being belated and also that the suit by that time was at the stage of hearing final arguments. As a matter of fact, the application on the death of defendant No.1 Madho Ram has been filed in the trial Court well within the period of limitation, in case the date of death is taken as 01.08.2017. No doubt, there is delay in filing the application for substitution of legal representatives of deceased defendant No.4 Nand Kishore and there seems to be no application filed under Order 22 Rule 9 CPC and Section 5 of the Limitation Act for setting aside the abatement, if any, of the suit on the death of the said defendants and condonation of delay as occurred in filing the same. However, irrespective of it, the application should have not been dismissed being belated on the ground that the suit was at the stage of final arguments. The question of substitution of LRs and abatement of the suit on the death of defendants were to be decided by the trial Court as they died during the pendency of the suit. 6. The law on the point is no more res-integra as it is held so by this Court in a recent judgment passed in RSA No. 335 of 2016 titled Sh.
6. The law on the point is no more res-integra as it is held so by this Court in a recent judgment passed in RSA No. 335 of 2016 titled Sh. Swaroop Singh (since deceased) through his LRs v. Manohar Lal and others, decided on 11.04.2018. Being so, the impugned order is quashed and set aside. There shall be a direction to the trial Court to decide the applications filed for substitution of legal representatives of deceased defendants No.1 and 4 in accordance with law and also the observations hereinabove in this judgment. The petitioner-plaintiff through learned counsel representing him is directed to appear in the trial Court on 8th August, 2018. The trial Court thereafter shall proceed further in the matter after securing presence of the defendants. The record be returned forthwith along with a copy of this judgment. 7. The petition is allowed and stands disposed of. Pending application(s), if any, shall also stand disposed of.