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2018 DIGILAW 1732 (HP)

Babu Ram v. Achhru (deceased) through LRs. Smt. Kanku Devi

2018-09-26

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. 1. A conclusive and binding decree of injunction, stands, pronounced, against the defendant one Achhru Ram, whereunder, he was, declared to be a Karta of the suit property, and, was restrained, to alienate, create and change the suit property, without, the consent of the decree holder/plaintiff. During the pendency of the Execution Petition, before the learned Executing Court, the afore judgment debtor Achhru Ram, died and the decree holder, for further progressing, the execution petition, hence instituted an application, for, begetting the, substitution of deceased judgment debtor, Achhru Ram, by his LRs and the afore application was dismissed, hence standing aggrieved therefrom, the decree holder, has, extantly cast a challenge, upon, the impugned verdict. 2. The relevant provisions, as applicable, qua the instant petition, are borne in Order 21 Rule 32, sub-section (1) CPC, provisions whereof, are, extracted hereunder: “Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.” 3. And a reading, of, the afore extracted provisions, make imminent upsurgings qua evident wilfull violation of the decree of injunction, by the litigant concerned, rather hence rendering him amenable to face, the, statutory ill-consequences, of his being ordered to be detained in civil prison or his property being ordered to be attached. 4. The learned counsel for the respondents has submitted with much vigor: (i) that the afore manner of execution of, a, decree of injunction, upon, its evident disobedience, during his lifetime, by the errant litigant, and vis-a-vis him rather being forbidden upon his demise to be amenable for execution, upon, his LRs nor hence any order for substitution, of, the errant deceased litigant, by his LRs being renderable and, for strengthening the afore submission. (ii) he further contends that the afore statutory manner of execution, of a decree of injunction, against, the errant litigant, rather being personally executable against the errant litigant, and, upon his demise, it being not hence executable personally against any of his legal representatives, nor against the assets’ of the deceased litigant, assets whereof, upon the latter's demise, hence, fall into their hands. 5. However, the aforesaid contention is frail, and, cannot be accepted by this Court, as it emanates from a gross misreading, of, the hereat rendered decree of injunction. A deep reading of the hereat rendered decree of injunction rather unveils: (i) qua the deceased judgment debtor one Achhru Ram, being declared a Karta of, the, joint hindu ancestral co-parcenary property and further also his thereunder being barred to alienate, it, without the consent of the decree holder, petitioner herein. The counsel appearing for the respondents before this Court, does not hold any contest, vis-a-vis, the deceased judgment debtor, one Achhru Ram, during his lifetime, despite holding an opportunity to obey, the, decree of injunction, his rather, wilfully disobeying it. (ii) now, given the afore deceased errant litigant being declared a Karta, and with the suit property being, a, joint Hindu ancestral co-parcenary property, and with the plaintiff- decree holder, prima-facie, hence holding an indefeasible interest therein, as a coparcener. (iii) further, when upon demise of deceased judgment debtor, Achhru Ram, the ancestral co-parcenary property prima-facie, continues to retain its above character and prima-facie hence, it stands, transmitted into the hands of his legal representative, latter whereof, upon the demise of, the, errant litigant, prima-facie inherit the latter's share, in the residual ancestral co-parcenary property. (iv) consequently, given the afore imminent evidence, existing on record, thereupon when the LRs of the deceased errant litigant, prima-facie inherited the share of the latter, in the residual, of the ancestral co-parcenary property. (v) thereupon, they, are required to be impleaded in his place, in the array, of judgment debtors. (vi) importantly when hence the manner of execution of, a, decree of injunction, upon, its evident disobedience, by their predecessor-in-interest, though, would not render them to face the ill-consequences of theirs being ordered, to be detained in civil prison, whereas, rather would render the residual of the ancestral co-parcenary property, hence being, ordered to be attached. (vi) importantly when hence the manner of execution of, a, decree of injunction, upon, its evident disobedience, by their predecessor-in-interest, though, would not render them to face the ill-consequences of theirs being ordered, to be detained in civil prison, whereas, rather would render the residual of the ancestral co-parcenary property, hence being, ordered to be attached. (vii) also hence constrains this Court to allow the instant petition, rather, for enabling efficacious execution of the apt decree, and, in the afore manner. 6. In aftermath, the impugned order, suffers, from a gross perversity and absurdity. Accordingly, the petition is allowed and the impugned order is quashed and set aside. The learned Executing Court is directed to permit the decree holder to bring on record the legal heirs of deceased judgment debtor late Achhru Ram, in, the pending execution petition, and, proceed further in accordance with law. All pending applications, also stand disposed of.