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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3007-3008  OF 2017 [Arising out of SLP [C] Nos. 1483-1484 of 2015]

Prabhakara Adiga … Appellant

Vs.

Gowri & Ors. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.

2. Singular  question  involved  in  the  matter  is  executability  of  decree  for

permanent injunction against the legal representatives of judgment-debtor.

3. A suit was filed by the appellant registered as Original Suit No.83/2007 in

the  Court  of  II  Additional  Civil  Judge,  Kundapura,  with respect  to  immovable

property described in Schedule ‘A’ of the plaint. The plaintiff got converted the

land for non-agricultural/residential purposes. The plaintiff was in possession and

enjoyment of the property and defendant had no concern with the same. However,

he tried to remove and destroy the wooden fence and made an effort to forcibly

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dispossess the plaintiff.  Hence the suit was filed. The defendant had denied the

averments and contended that there was no division of the land and had asserted

his ownership and possession.    The conversion order of land was also illegal.

4. It  was  found  on  the  basis  of  the  registered  partition  deed  that  the  suit

schedule property was allotted to the plaintiff and he was in possession thereof.

The defendant on partition in his  own family had been allotted 1.58 acres and

defendant has sold 1.68 acres of land, though the land allotted to him was only

1.58 acres in Survey No.32/5.  Plaintiff was found to be in possession of Schedule

‘A’ property on the date of the suit. It was held that the defendant had no right, title

or interest in the disputed land.  Accordingly, the suit of the plaintiff for permanent

injunction was decreed vide judgment and decree dated 13.9.2012.  

5. After  suffering  decree  for  permanent  injunction  on  13.9.2012,  the

judgment-debtor Divira Bolu died on 10.12.2012. The heirs of the judgment-debtor

in violation of the decree for permanent injunction tried to forcibly dispossess the

decree-holder from Schedule ‘A’ property. Thus, the decree-holder filed execution

petition within two years of the passing of the decree.  It was resisted by the heirs

of  judgment-debtor  on the  ground that  they were not  bound by the decree for

permanent  injunction.   The  force  of  decree  lapsed  with  the  death  of

judgment-debtor.  The decree was incapable of enforcement against them as the

judgment  debtor  had  died.  Reliance  was  placed  on  the  legal  maxim  “actio

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personalis  moritur  cum  persona”.  The  executing  court  held  that  the  heirs  of

judgment-debtor  were  bound  by  the  decree  and  directed  them  to  furnish  an

undertaking to  the  effect  that  they would  not  disobey  the  decree  of  the  court.

Aggrieved thereby, the respondents preferred a writ petition in the High Court of

Karnataka at Bangalore which has been allowed by the impugned order. The High

Court has held that the decree for permanent injunction cannot be enforced against

the legal heirs of judgment-debtor as injunction does not travel with land.        

6. It was submitted by learned counsel representing the appellant that the High

Court  has  erred  in  law  in  holding  the  decree  for  permanent  injunction  to  be

inexecutable  as  against  the respondents/heirs  of  judgment-debtor. He has relied

upon section 50, section 146, Order 21 Rule 16, Order 21 Rule 32 and section 47

CPC in order to take home the point. On the other hand, learned counsel appearing

on behalf of the respondents has also referred to few decisions to contend that the

decree  for  permanent  injunction  does  not  go  with  the  land.  Thus,  the  same is

inexecutable against the legal heirs of the judgment-debtor.

7. It is apparent in the instant case that on the basis of the title of the plaintiff

over the disputed land, decree for permanent injunction had been granted. It was

found that the defendant had sold the property which had fallen to his share in the

partition of his own family.  It was held in the suit that the defendant was not the

owner  of  the  disputed  property  and  it  belonged  to  the  plaintiff.   In  execution

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proceedings filed within 24 months of decree, a question arose whether after the

death of  judgment debtor, his heirs  could start  interference in the property and

plaintiff was obliged to file another suit for injuncting them or could execute the

decree for permanent injunction which was granted in his favour as against the

heirs of judgment-debtor.

8. Section  50  of  the  CPC  has  been  referred  to  and  the  same  is  extracted

hereunder :

“50.  Legal  representative—  (1)  Where  a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to  execute  the  same  against  the  legal  representative  of  the deceased.            (2) Where the decree is executed against such legal representative,  he  shall  be  liable  only  to  the  extent  of  the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”  

9. Section 146 CPC has also been referred to and the same is extracted  

hereinbelow :

“146.  Proceedings  by  or  against  representatives— Save as otherwise provided by this Code or by any law for the time being in  force,  where  any proceeding  may be  taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.”

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10 The provisions of Order XXI Rule 16 and Order XXI Rule 32 of CPC have

also been referred to and they are also extracted below :

“16. Application for execution by transferee of decree — Where a decree or, if  a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in  the  decree  in  transferred  by  assignment  in  writing  or  by operation of law, the transferee may apply for execution of the decree to the Court  which passed it;  and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder :        Provided  that  where  the  decree,  or  such  interest  as aforesaid, has been transferred by assignment,  notice of such application  shall  be  given  to  the  transferor  and  the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution :       Provided also that,  where a decree for  the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.       [Explanation.—Nothing  in  this  rule  shall  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 this rule.]”  

    “32. Decree for specific performance for restitution of conjugal rights or for an injunction.— (1) 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.       (2)  Where the party against  whom a decree for  specific performance or for an injunctions been passed is a corporation,

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the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in  the  civil  prison  of  the  directors  or  other  principal  officers thereof, or by both attachment and detention.      (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for [six months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.     (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where,  at  the  end  of  [six  months]  from  the  date  of  the attachment,  no application to have the property sold has been made, or if made has been refused, the attachment shall cease.      (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by  the  decree-holder  or  some  other  person  appointed  by  the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.”

11. Section 50 CPC deals with execution of decrees of all kinds including that of

permanent  injunction.    Section  146 CPC provides  that  where  any  application

which can be made by or against any person, it may be made by or against any

person claiming under him except as otherwise provided in the Code.  Order 21

Rule 16 deals  with execution of  decree by a transferee with which we are not

concerned in this case.  Order 21 Rule 32 provides the  mode for execution of

decree  for  injunction,  restitution  of  conjugal  rights  and  specific  performance.

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Section 50 CPC which is a specific provision with respect to execution of decree

against legal representatives, would  be attracted read with Order 21 Rule 32 CPC.

12. It  is  crystal  clear  from a perusal  of  section 50(2) CPC that  a  decree for

permanent  injunction can be executed against  the judgment  debtor  or  his  legal

representatives. In Muthukaruppa Pillai & Anr. v. Ganesan (1995) Supp 3 SCC 69,

a question arose with respect to executability of the decree for injunction in the

backdrop  of  facts  that  the  plaintiff  had  filed  a  suit  for  restraining  the

defendant-appellant from interfering with her rights as Hakdar and Pujari. The suit

was decreed and it was held that the said rights were heritable and partible. On

aforesaid foundation, decree was passed. The successor-in-interest of the plaintiff

decree-holder had put the decree for execution. It was contended that the decree for

injunction  was  personal  in  nature  and  could  have  been  enforced  by  the

decree-holder  only.  This  Court  held  that  there  was  nothing  in  the  decree  for

permanent injunction to hold that it lapsed with the death of the plaintiff and it

could be executed by heirs of decree holder. This Court has laid down thus :

“1. This judgment-debtor’s appeal is directed against judgment and order of the High Court of Madras. The appellant was a defendant in a suit  filed by the predecessor-in-interest  of  the respondent  for  permanent  injunction restraining the appellant from interfering  with  her  right  as  Hakdar  and Pujari  of  two temples in Kottarakurichi village. The suit even though decreed by the trial court was dismissed by the first appellate court. But

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the decree of the trial court was restored by the High Court, which was to the following effect:

“[T]he defendants, their workmen, their agent, etc. be and are hereby restrained by an order of permanent injunction from  interfering  with  the  plaintiff’s  enjoyment  of  the plaint schedule property (described hereunder) till the end of 1965 Margali 30th (i.e., till January 13, 1965) and in every alternative years in future….”

The judgment of the High Court was delivered in 1969. The decree-holder died in June 1981. The respondent who claims to be adopted son of the plaintiff in the original suit and also her legatee filed an application for execution in 1981 under Section 146 and Order XXI Rule 16 of the Civil Procedure Code. It was resisted by the appellant on various grounds.  The application was allowed against which the appellant filed revision. During pendency of the execution proceedings, the respondent filed an application before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Tirunelveli, Tamil Nadu, claiming the rights to do puja and enjoy the share of income from the two temples.  The  application  was  allowed  by  the  Deputy Commissioner,  but  the  order  was  set  aside  by  the Commissioner, Hindu Religious and Charitable  Endowments, Madras in revision filed by the appellant. It was held that the respondent could not claim better  and more rights than what were granted in favour of his predecessor-in-interest by the civil court. Against this order of the Commissioner, the respondent filed a writ petition. Both, the revision filed by the appellant and writ  petition  filed  by the  respondent  were  decided by a common order. The High Court maintained the order of the trial court in execution, except to certain extent.  The writ  petition filed by the respondent was dismissed.

2. The principal challenge to the order passed by the High Court is on the nature of the decree. It is claimed that the decree being personal,  it  could  not  have  been executed  by the respondent who claimed to be successor-in-interest of the plaintiff in the suit. The submission appears to be devoid of any merit. In the main  suit,  out  of  which  these  execution  proceedings  have arisen, it was clearly held by the High Court that the rights were heritable and partible. In view of this finding, it is not clear as

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to how can the appellant  raise  the argument of  decree being personal in nature. Apart from that,  the decree passed by the trial  court,  copy of  which has been produced by the learned counsel  for  the  respondent,  the  authenticity  of  which  is  not disputed by the appellant, and which has been extracted earlier, clearly indicates that the injunction granted did not impose any such restriction expressly nor could it be impliedly held that it lapsed with the death of the plaintiff.”

This Court has laid down that legal representatives of decree holder can execute

decree for permanent injunction relating to property or right which is heritable and

partible.  When such is the situation, in our opinion, it would be open to decree

holder to execute decree against successor of interest of judgment-debtor also.

13. In Ramachandra Deshpande v. Laxmana Rao Kulkarni AIR 2000 Karnataka

298, a question arose with respect to executability of the decree for permanent

injunction restraining the defendant from obstructing plaintiff’s use and enjoyment

of  their  right  of  way  through  the  backyard  of  the  defendant’s  house,  and

subsequently, the house was sold by judgment-debtor-defendant. It was held that

the decree could have been executed against the transferee judgment-debtor. The

rule that a decree for injunction cannot be enforced against a purchaser from a

judgment-debtor since injunction does not run with the land for it is a remedy in

personam is not applicable considering the nature of rights adjudicated upon. The

Court held that enforcement of the decree against legal heirs of the deceased was

saved by section 50 CPC and as against the purchaser of the suit property pendente

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lite was saved by section 52 of the Transfer of Property Act. The High Court has

relied upon the decisions of this Court in Muthukaruppa Pillai & Anr. v. Ganesan

(supra) and in  Kanhaiya Lal v. Babu Ram (dead) by LRs. & Anr. (1999) 8 SCC

529.  The High Court has observed that if the remedy of injunction granted by a

decree is in respect of any heritable and partible right, it does not get extinguished

with the death of a party thereto, but enures to the benefit of the legal heirs of the

decree-holder, as such a decree could be executed against the successor-in-interest

of  the  deceased  judgment-debtor  as  well.  Similar  is  the  decision  in  G.M.

Venkatappa  v. Anjanappa  & Anr.  ILR 2006 Karnataka  4456,  wherein  also  the

question of executability of the decree for permanent injunction arose.  

14. Normally personal action dies with person but this principle has application

to limited kinds of causes of actions. In  Girijanandini Devi v. Bijendra Narain

Choudhary AIR 1967 SC 1124, this Court while considering the question whether

the decree for account can be passed against the estates, also considered the maxim

“actio  personalis  moritur  cum persona”  and  observed  that  the  postulation  that

personal action dies with the person, has a limited application.  It operates in a

limited class  of  actions,  such as actions for  damages,  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.  Death of the person liable to render the account for property received by

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him does not therefore affect the liability of his estate.  This Court has observed

thus:

“(14)  Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the pendency of the proceedings,  the High Court  was incompetent   to pass a decree  for  account  against  their  estates.   Rajballav  who was defendant  No.6 died during the pendency of  the suit  for  the Trial Court and Mode Narain who was defendant No.1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim.  It is not extinguished because the party who claims an account, the  party  who is  called  upon to  account  dies.    The  maxim “action personalis moritur cum persona”  a personal action dies with  the  person,  has  a  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.   An action for account is not an action for damages ex delicto,  and does not  fall  within the enumerated classes.  Nor is it such that the relief claimed being personal could  not  be  enjoyed  after  death,  or  granting  it  would  be nugatory.  Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate.  It may be noticed that this question was not raised in  the  Trial  Court  and  in  the  High  Court.   It  was  merely contended  that  because  the  plaintiff  Bijendra  Narain  was receiving  income  of  the  lands  of  his  share  no  decree  for accounts  could  be  made.   The  High  Court  rejected  the contention that no account would be directed in favour of the plaintiff on that account.  They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of  the  joint  family  since  1941  cannot  possibily  absolve  the defendants,  who  were  in  charge  of  their  dealings  with  the management of the properties, from rendering accounts of the joint  family estate.   The  plaintiff  was  since  September  1941 severed from the joint family in estate and also in mess and residence,  and he was entitled to  claim an account  from the

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defendants  from September  1941,  but  not  for  past  dealings. The  fact  that  the  plaintiff  is  in  possession  of  some  of  the properties  will,  of  course,  have  to  be  taken  into  account  in finally adjusting the account.”

15. The views of the High Courts which are relied upon are by and large in

favour of executability of decree.  Of course it would depend on the right litigated,

findings recorded and the nature of decree granted.   In D’souza J. v. Mr. A. Joseph

AIR 1993 Karnataka 68, a Single Bench of the Karnataka High Court held that

when a decree for injunction against a person can be enforced even against his son,

it is obvious that a similar logic should hold good even in the case of the death of

the plaintiff who has obtained a decree.  There should not be any legal impediment

for  a  heir  of  a  decree-holder  to  enforce  the  decree  for  injunction  against  the

judgment-debtor.   There  is  no  such  legal  impediment  on  the  principle  that

injunction does not run with the land.   Yet another Division Bench of the Kerala

High Court in Rajappan and Ors. v. Sankaran Sudhakaran AIR 1997 Kerala 315,

also considered the question of violation of decree by the legal representatives of

judgment-debtor and has laid down that a decree for permanent injunction can be

executed against them.   It was observed that if a decree for injunction compels

personal obedience, it in appropriate cases would not be enforced against the legal

representatives.   However, if subject matter of the suit and the act complained of

was on the basis of ownership of an adjacent property of the other side, then such a

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decree  for  injunction  would  be  binding  not  only  against  the  judgment-debtor

personally but all those who claim through him.  A decree for perpetual injunction

was  passed  restraining  the  judgment-debtors  from  trespassing  into  the  decree

schedule property destroying the boundaries thereof and from interfering with the

rights  of  the  decree-holder.  The  legal  representatives  of  the  judgment-debtor

violated the injunction.  The Court, in our opinion, rightly held that the executing

court  could  execute  the  decree  of  perpetual  injunction  against  the  legal

representatives of the judgment-debtor.   

16. In  Krishnabai Pandurang Salagare v. Savlaram Gangaram Kumtekar  AIR

1927  Bombay  93  it  was  held  that  when  a  decree  is  passed  against  a

judgment-debtor,  it  can  on  his  death  be  enforced  not  only  against  the  legal

representatives, but also against the transferee from those representatives who take

under an alienation pending the execution proceedings.   

17. In  Amritlal Vadilal v. Kantilal Lalbhai AIR 1931 Bombay 280 it has been

observed that a decree for injunction does not run with the land and cannot be

enforced in absence of the statutory provision against surviving member of joint

family or against purchaser from judgment-debtor but can be enforced against legal

representatives joined under Section 50 CPC and so also against transferees from

original judgment-debtor as per Section 52 of the Transfer of Property Act.    In

Ganesh Sakharam Saraf v. Narayan Shriram Mulaye AIR 1931 Bombay 484 it was

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held that though an injunction is a personal remedy and does not run with the land,

ordinarily  a  decree  for  an  injunction can be  executed  only against  the persons

against whom the injunction is issued and cannot be executed against any other

person in the absence of a statutory provision.  If an injunction decree is capable of

being enforced against  a  person other  than the judgment-debtor  by  virtue of  a

statutory provision contained in Section 50 CPC, it can be executed equally against

the son who inherits the estate of his father as well as against one who was joint

with the father and brought on the record as his legal representative.  It was also

observed that where a decree had been passed against the father as a manager and

representative  of  the  joint  family,  it  could  be  executed  against  his  son  who

represented the joint family.   

18. In Manilal Lallubhai Patel v. Kikabhai Lallubhai AIR 1932 Bombay 482 a

Single  Bench  has  held  that  where  a  decree  for  an  injunction  has  been  passed

against the father, the son not being joined as a party, and the father dies during the

pendency of the execution proceedings, the decree can be enforced under Section

50 CPC against the son as his legal representative by proceeding under Order 21,

Rule 32.

19. In  Somnath  Honnappa  Bennalkar  v.  Bhimrao  Subrao  Patil 1974  ILR

Karnataka 1506, a compromise decree was passed in favour of the plaintiff for

permanent  injunction  restraining  the  judgment-debtor  from interfering  with  the

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plaintiffs possession and enjoyment of the suit property.  Subsequently, the plaintiff

sold his suit property to the assignee and also assigned compromise decree in his

favour.  The assignee took out execution against the judgment debtor.   It was held

that the assignee of a compromise decree was not competent to execute the decree.

It was further held that the compromise decree for injunction was personal and did

not run with the land.   However, it was a case of assignment and not covered by

section 52 of the Transfer of Property Act.   

20. The  High  Court  of  Karnataka  in  Hajaresab  v.  Udachappa 1984  ILR

Karnataka 900 has also held that under the provisions of Section 50 CPC the legal

representatives of the deceased defendant against whom the decree for injunction is

passed would be liable  for  violation of  that  decree.   It  was  also  observed that

Section 50 CPC does not make any distinction between a decree for permanent

injunction and a decree of any other nature.  The High Court has referred to the

‘Execution Proceedings’  by Shri Soonavala, 1958 Edition thus:

“In  Execution  Proceedings  by  Shri  Soonavala,  1958 Edition, on page 386 it is said: -

"A decree for injunction does not run with the land and cannot be enforced against a purchaser of the property from the defendant. But it can be enforced against a legal representative  of  the  deceased  j.d.  Plaintiff  obtained  a decree  against  the  defendant,  restraining  the  latter  from obstructing the access to light and air to her windows. The plaintiff applied for execution praying that the portion of the  defendant's  house  which  obstructed  her  windows

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should be pulled down. While this application was pending the defendant died and his son and heir was brought on the record. The lower Courts directed that the decree should be executed as prayed for and directed the appellant (the son and  heir  of  the  deceased  defendant)  to  pull  down  the obstructing portion of the house in question within a given time. It was contended for the appellant that the original defendant  having  died,  the  injunction  could  not  be enforced against  his son (the appellant)  as  an injunction does not run with the land. It was held that having regard to  the  provisions  of  Section  50,  the  injunction  ordered against the deceased defendant might be enforced against his son and his legal representative.

The author has further said on the same page -

"But  a  decree  for  injunction  cannot  be  enforced against a purchaser of the property from the defendant or against a person who is not his legal representative. The plaintiff obtained a decree restraining the defendant in his user of certain land and applied for execution. Mean while the  land  had  been  sold  in  execution  of  another  decree against the defendant and the purchaser at the Court sale obtained possession.  The plaintiff thereupon applied that the  purchaser  should  be  made  a  party  to  the  execution proceedings and that execution should go against him as well as against the defendant, It was held that no order for execution could be made. It could not go on against the defendant as all his interest in the land had been sold in execution of a decree, and it could not go on against the purchaser as an injunction does not run with the land."

The author has further said -

"A decree for injunction does not run with the land and  in  the  absence  of  any  statutory  provision,  such  a decree cannot be enforced against the surviving members of  a  joint  family  or  against  a  purchaser  from j.d.   But where the sons of the j.d. are brought on the record as his legal representatives under Section 50, the decree can be

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executed against them and so also against the transferees from the legal representatives, under Section 52, Transfer of Property Act. On the same principle, viz., that they are bound  by  the  result  of  the  execution  proceedings under Section 52, T.P. Act, the transferees from the original j.d.  during  the  pendency  of  the  execution  proceedings against  him,  can be  held  to  be  similarly  bound and are liable to be proceeded against in execution".

The author has further said on page 387 as -

"A  decree  awarding  certain  reliefs  by  way  of injunction  was  passed  in  favour  of  the  plaintiff.  Before execution  was  applied  for,  the  defendant  died  and  the darkhast  proceeded against  two widows of  the deceased j.d. as his legal representatives. During the pendency of the appeal  in  execution  the  legal  representatives  transferred their  property  to  a  stranger.  A question  was  raised  that execution  could  not  proceed  against  the  legal representatives and their transferee, as the relief granted by way of injunction was purely personal and the original j.d. having died, the injunction has ceased to be operative, it was held that the darkhast originally filed against the legal representatives was in order under Section 50, C.P.C., and was also good against the transferee as the transfer was not made under the authority of the Court and, being effected during  the  pendency  of  a  contentions  proceeding  in execution of the decree, could not be allowed to affect the right of the plaintiff under Section 52, T.P. Act. (Krishnabai - v. - Sawlaram, I.L.R. 51 Bom. 37; 100 LC. 582 : A.I.R. (1927)  Bom. 93;  also see,  9  Bom. L.R.  1173;  I.L.R.  26 Bom. 140, 283.) An injunction is a personal remedy and does  not  run  with  the  land.  A decree  for  an  injunction therefore can be executed only against the persons against whom  the  injunction  is  issued  and  cannot  be  executed against  any  other  person  in  the  absence  of  a  statutory provision.  If  an  injunction  decree  is  capable  of  being enforced against a person other than the j.d. by virtue of a statutory  provision,  e.g.     Section  50  ,  C.P.C,  it  can  be executed equally against the son who inherits the estate of

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his father as well as against one who was joint with the father  and  is  brought  on  the  record  as  his  legal representative.   A d.h.  sought  to  execute  a  decree  for permanent injunction obtained against the father in a joint Hindu family against his sons. It was held that the decree being  passed  against  the  father  as  a  manager  and representative of the joint family could be executed against his  son  who  represented  the  joint  family;  that  the  son taking the joint  family estate  by survivorship was to  be regarded as a 'person' who in law represented the estate of a deceased person within the meaning of the first part of the definition in Section (2) (11), C.P.C"  

(emphasis supplied)

21. In  Basavant Dundappa v. Shidalingappa Sidaraddi ILR (1986) Karnataka

1959 relied on by the respondents, it was held that when an application had been

filed by the decree-holder for execution and similar application was dismissed on

the ground that it  was not maintainable,  another application for the same relief

stands barred.   

22. In  Shivappa Basavantappa Devaravar v. Babajan 1999 (4) Kar. L.J.  293,

relied on by respondents, where in a suit for permanent injunction, injunction was

granted and was upheld by the first Appellate Court and second appeal was filed

and the legal representatives of judgment-debtor wanted to prosecute the same, a

single Bench applied the principle of the maxim “actio personalis maritur cum

persona” and held that the legal representatives had no right to pursue the appeal.

In our opinion, it cannot be said that single Bench has correctly appreciated the

legal position as suit was based on title in the aforesaid decision.  At the same time,

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the Single Judge has also observed that  if  the injunction had been obtained by

plaintiff  against  the  defendant  and if  plaintiff  died,  legal  representatives would

have been entitled to the benefit of injunction.  In our opinion, the High Court has

erred  in  dismissing  the  appeal.  The  said  maxim  had  no  application,  thus  the

decision cannot be said to be laying down the correct proposition of law and is

overruled.  

23. Another decision which has been referred to is Abdul Kardar Haji Hiroli v.

Mrs. Judaih Jacob Cohen 1969 BLR 749 in which the question arose about the

executability  of  the decree containing covenants  running with the land and the

same was passed with the consent of the parties, the Court held that it was not

executable against the third party and the purchaser of the land.  The question does

not  arise  for  consideration  as  the  present  case  is  not  the  case  of  transfer  or

execution by or against the purchasers of the land.

24. Learned author Mulla in his Commentary on the Code of Civil Procedure

(18th Edition) Vol I, while analyzing the provisions of Section 50 CPC has referred

to various decisions of the High Courts (Sakarlal v. Parvatibai (1902) 26 Bom 283,

Amritlal v. Kantilal AIR 1931 Bom 280, Ganesh v. Narayan AIR 1931 Bom 484,

Dayasbhai v. Bapalal (1902) 26 Bom 140,  Vithal v. Sakharam (1899) 1 Bom LR

854,  Jamsetji  v.  Hari  Dayal (1908)  2  Bom  181,  Chothy  Theyyathan  v.  John

Thomas AIR 1997 Ker 249,  Krishnabai v. Savlaram AIR 1927 Bom 93,  Kalpuri

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Ellamma v. Nellutla Venkata Lakshmi 2008 (72) All Ind Cas 669) with respect to

the executability of decree for injunction and observed at pages 687-688 thus:

“12.   Decree for injunction.-  An injunction obtained against a defendant, restraining him from obstructing plaintiff’s ancient rights, may, on the death of the defendant, be enforced under this section, against his son as his legal representative, by procedure under O 21, r 32 (Sakarlal v. Parvatibai, (1902) 26 Bom 283;  Amritlal v. Kantilal, AIR 1931 Bom 280 : (1931) 33 Bom LR 266.  Code of Civil Procedure 1882, s 260).  Similarly, a decree for an injunction against a manager and representative of a joint Hindu family can be enforced after his death against a son who represents the joint family (Ganesh v. Narayan, AIR 1931 Bom 484 : (1931) 55 Bom 709).   But such an injunction cannot be enforced under this section against a purchaser of the property from the defendant, for an injunction does not run with the land.  The remedy of the decree-holder is to bring a fresh suit  for  an  injunction  against  the  purchaser  (Dayasbhai  v. Bapalal, (1902) 26 Bom 140; Vithal v. Sakharam, (1899) 1 Bom LR 854; Jamsetji v. Hari Dayal, (1908) 32 Bom 181), when the decree  is  one  restraining  the  owner  of  the  property  from blasting rocks in his property on a finding that such blasting would  injuriously  affect  the  adjacent  property  of  the decree-holder.  When once a decree is passed, it is obvious that the defendant in the suit, judgment-debtor, would be precluded from carrying on blasting operation in his property.   To say that when he is succeeded by the others, they would not be bound by  the  restrain  relating  to  the  enjoyment  of  the  particular property is to derogate from the principle of the public policy that there shall be no second litigation in respect of the same right and the same property.  It cannot be the policy of law that every time an assignment of the decree schedule property take place, the decree-holder should institute a fresh suit against the assignee,  so as  to prevent  them from disobeying the  decree obtained by the decree-holder against the original owner of the property (Chothy Theyyathan v. John Thomas,  AIR 1997 Ker 249.   See notes to s 47, ‘Representatives No. (6)-Purchaser of Property’).  The Bombay High Court has held that an injunction can  be  enforced  against  a  person  who  has  purchased  while

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execution proceedings are pending, by virtue of the doctrine of lis  pendens (Krishnabai  v.  Savlaram,  AIR  1927  Bom  93  : (1927) 51 Bom 37).   

In  execution  of  a  decree  for  perpetual  injunction,  the liability of the legal representatives of the judgment-debtors is limited  to  the  extent  of  interference  which  was  restrained through such decree.  It is only such legal representatives who defy the decree that can be proceeded against (Kalpuri Ellamma v. Nellutla Venkata Lakshmi, 2008 (72) All Ind Cas 669).”    

25. In K. Umma v. T.K. Karappan AIR 1989 Ker 133 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 judgment-debtor, if he dies.

26. 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 judgment-debtor. 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

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moritur cum persona” is limited to certain class of cases as indicated by this Court

in  Girijanandini Devi v. Bijendra Narain Choudhary  (supra) 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.   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.

27. Resultantly, we allow the appeals, set aside the impugned order passed by

the High Court and hold that the direction issued by the executing court that an

undertaking be furnished by the legal  representatives to abide by the decree is

proper, failing which the executing court would proceed in a permissible mode in

accordance with law to enforce the decree under the provisions of Order XXI Rule

32 CPC. No costs.

…………………………J. (Arun Mishra)

New Delhi; ………………………..J. February 20, 2017. (Amitava Roy)