Nareddy Raji Reddy and Others vs Pasula Enkamma and Others

Krishna Saran Shrivastav, J.—This revision is directed against the order passed in E.P.S.R.No. 1643/96, dated 23-11-1996 by the District Munsif, Ibrahimpatnam.

At the outset, it is to be remarked that, notice before admission was given to the respondents and learned Counsel of both sides were heard on merits.

The District Munsif, Ibrahimpatnam, in O.S. No. 57/73, dated 17-1-1977, passed a decree for perpetual injunction in favour of N. Ramachandra Reddy and E. Sudershan Reddy and against the respondents restraining the respondents from interfering in their (plaintiffs'') possession and enjoyment of the suit lands bearing Survey Nos. 47/2 and 48 of Village Khanpur, Taluk Ibrahimpatnam (suit lands).

The petitioners filed an application under Order 21 Rule 16 of the CPC alleging that, some time in the year 1989, there was an oral partition of the suit land between the first petitioner and his brother N. Ramachandra Reddy in which his half share fell to the share of the 1st petitioner while the co-decree holder E. Sudershan Reddy sold his half share in the suit lands to the second and third petitioners as also assigned the decree of the perpetual injunction through a registered sale deed, dated 3-7-1989, and thereafter the petitioners have been in exclusive peaceful possession and enjoyment of the suit lands. On 1-11-1996, the respondents have started wilfully disobeying the decree for permanent injunction and have started obstructing the agricultural operations and, therefore, they sought the assistance of the executing Court.

The executing Court in E.P.S.R.No. 1643/96, dated 23-11-1996, dismissed the application on the ground that a decree for injunction is personal in nature and does not run with the land and, therefore, it cannot be assigned.

Relying on Ramachandra Govinda Palekar v. Narayan Zampanna Sulebhavi, Ex.S.A, 92 of 1968, Dahyabhai v. Bapalal, (1902) ILR 26 Bom. 141, Jamesetji Majekji Kotval v. Hari Dayal, (1908) ILR 32 Bom. 181, Abdul Kardar Haji Hiroli v. Mrs. Judah Jacob Comen, (1967) 69 Bom.L.R, 749 and Attorney General v. Birmingham, Tame and Rea District Drainage Board, (1881) 17 Ch.D. 685 as also on Somnath Honnappa Bennalkar v. Bhim Rao Subrao Patil, ILR 1974 Kar. 1506 it is held in Chinnammal Vs. Nagarathinammal, that, a decree for injunction does not run with the land, it is a personal one and that the purchaser cannot maintain execution petition.

In the case of Jamesetji Manekji, the vendors of the plaintiff had obtained a decree for permanent injunction against the defendants therein restraining them from causing obstruction to the plaintiff in passing over their land to reach his adjoining land. After purchasing the land from the original decree holder Atmaram, Jamsetji filed a suit for permanent injunction against the same defendants on the ground that they were restraining him from passing through their land in order to reach his land. The question for consideration was whether the second suit is barred by res judicata or the suit is maintainable. The Division Bench of the Bombay High Court, observing that an injunction does not run with the land, held that in the circumstances of the case there is no bar to the plaintiff''s suit. It is clear from the judgment rendered by the Division Bench of the Bombay High Court that the purchaser can file a fresh suit for permanent injunction, but this question did not come up for consideration as to whether a decree for permanent injunction can be validly assigned or not and whether the assignee is competent to execute the decree for permanent injunction or not.

In the case of Krishna Behari Goel Vs. Raj Mangal Persad and Others, one Sukhhu had instituted a suit for injunction against the defendant, Krishna Behari, to restrain him from interfering with his possession over certain tenancy occupancy. During the pendency of the suit, Sukhhu died and Smt. Surjita and others applied for being brought on record as his legal representatives, During the pendency of this application, they transferred their interest in the property in dispute to third parties who applied for leave of the Court to carry on the suit under Order 22 Rule 10 of the Code of Civil Procedure. It is held in this case that the suit was not of a personal nature at all. Sukhhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the plaintiff. The cause of action survived to his legal representatives who came in possession of the property in dispute.

I am in complete agreement with the view taken by the learned single Judge of the Allahabad High Court in Krishna Behari Goel''s case (supra) and, in my opinion, a similar logic should hold good even in the case of transfer of the property and assignment of the decree for perpetual injunction.

In the case of Mr. D''souza J. Vs. Mr. A. Joseph, , it is held that :

"If 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. It is no doubt true that an injunction does not run with the land. However, in a case of heirship, the question of transfer of property does not arise. The question of injunction running with the land would not arise in a case where the heirs of the deceased steps into the shoes of the person who has obtained the decree. Therefore, there should not be any legal impediment for a heir of a decree-holder to enforce the decree for injunction against the judgment-debtor."

When in the case of heirship, the decree for injunction is executable by the legal representative, because he steps into the shoes of the deceased- plaintiff who had obtained the decree vide Mr. D''Souza J. (9 supra), the transferee of a decree for perpetual injunction should also be entitled to execute it in the same manner, because the transferee also steps into the shoes of the person who had obtained the decree and there should be no legal impediment to enforce the decree for injunction against the judgment-debtor. The question of injunction running with the land should not arise in such cases, particularly for reasons stated in the following paragraphs.

The common law maxim ''actio personalis moritur cum persona'', that is, a personal right of action dies with the person, is generally confined to action for damages for defamation, seduction, inducing spouse to remain apart from the other and adultery, as has been pointed out by the Supreme Court in the case of Official Liquidator, Supreme Bank Ltd. Vs. P.A. Tendolkar (Dead) by Lrs. and Others, .

In a decree for permanent injunction, the defendants are restrained from interfering with the peaceful enjoyment of the property in question which means that the plaintiff should peacefully enjoy the property in his own right, title and interest. When the property is conveyed, all the rights, title and interest of the vendor are conveyed to the vendee and he gets a right to enjoy the property peacefully by virtue of the transfer of interest in it. When a person is restrained from entering in or upon the land in question, it cannot be said that he gets a right to enter in or upon the land immediately on the transfer of interest in the property to a third party. This maxim has no application when the suit for perpetual injunction is decreed against a third person and after the plaintiff or the decree holder dies it cannot be said that the suit is abated or the decree on transfer of the land is extinguished. On a bare perusal of Section 146 and Order21 Rule 16 of the Code of Civil Procedure, it is revealed that the decree is not confined to any particular kind of decree, but it includes decree for perpetual injunction also. It would not be out of place to mention that if in the aforementioned circumstances the decree is made inexecutable, then, with the death of the decree holder or transfer of the property and assignment of the decree, the judgment-debtor would get a licence to interfere with the peaceful enjoyment of the property in question by the successor or transferee who would be again driven to file a fresh suit and that may be an endless litigation.

For the foregoing reasons, respectfully disagreeing with the views expressed in the case of Somnath Honnappa Bennalkar (supra) and Chinnammal''s case (supra), I hold that a decree for perpetual injunction, where the injunction sought was that the third party should not interfere with the peaceful possession of the decree holder over the property in dispute, is a decree not of a personal nature at all and does not extinguish with the death of the decree holder or with the transfer of the property in dispute and/or assignment of the decree.

In the case on hand, a decree for perpetual injunction had been obtained by the elder brother of the first petitioner and the vendors of the remaining petitioners against the respondents. It is alleged that on partition, the suit land has fallen against the share of the 1st petitioner. Therefore, so far as his case is concerned, the question for assignment of the decree does not arise, but it appears that he had a right in the suit property along with the original decree holder, that is his elder brother and the decree was obviously in his favour also.

For the reasons aforesaid, the impugned order is set aside and the executing Court is directed to investigate whether in the alleged oral partition, the share of the elder brother of the 1st petitioner, that is the first decree holder in the suit land had fallen to his share or not and whether the second decree holder had transferred his share in the suit land to the remaining petitioners or not, after giving an opportunity of being heard to the respondents. Before parting, I may observe that, it is well settled that the provisions of Sub-rule 5 of Rule 32 of Order 21 of the CPC applies only to mandatory and not prohibitory injunctions. The parties through their Counsel are directed to appear before the executing Court on 2-4-1997 for further proceedings. The revision petition is thus finally disposed of. Costs as incurred.