Himachal Pradesh High Court
Tara Singh vs Govind Singh (Deceased) Through Lrs on 30 November, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CMPMO No. 313/2016
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Reserved on: 24.11.2016
Decided on: 30.11. 2016
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Tara Singh. ...Petitioner.
Versus
Govind Singh (deceased) through LRs. ...Respondent.
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Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
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Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Ashok Kumar Tyagi, Advocate.
For the Respondent: Mr. Desh Raj Thakur, Advocate.
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Justice Tarlok Singh Chauhan, Judge:
This petition, under Article 227 of the Constitution of India, is directed against the order passed by the Executing Court on 3.5.2016 whereby it dismissed the application filed by the petitioner-decree holder for substituting the legal heirs of the judgment debtor on account of his death.
2. The proceedings before the learned Executing Court emanate from the judgment and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 2 decree passed in favour of the petitioner-decree holder whereby the original judgment debtor Govind Singh .
was permanently restrained from interfering in the suit land comprised in Khata Khatauni No.397/681 bearing Khasra No.1675/112/4 measuring 14 biswa situated in Mauza Bhagani, Tehsil Paonta Sahib of District Sirmaur, H.P.
3. The original debtor Govind Singh was rt alleged to have violated the judgment and decree leading to file the execution petition under order 21 rule 32 of the Code of Civil Procedure. He, however, died and after his death, the petitioner moved an application for bringing on record his legal representatives, which has been dismissed by the learned Executing Court on the ground that wilful disobedience and violation of judgment and decree is a penal provision and its cause of action dies with the defaulter.
4. It is against this order that the present petition has been filed on the ground that the findings recorded by the learned Executing Court are totally ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 3 perverse and based on misconstruction of law on the subject.
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5. I have heard the learned counsel for the parties and have gone through the material placed on record.
6. At the outset, it would be necessary to refer of to certain provisions of the Code of Civil Procedure:
"Section 50. Legal representative.
rt (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.
Section 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. Order 21 Rule 32 - Decree for specific performance for restitution of conjugal rights, or for an injunction ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 4 (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 of 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 rt specific performance or for an injunctions been passed is a corporation, 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 here, at the end of [six months] from the date of the attachment, no application to have the property sold has been ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 5 made, or if made has been refused, the attachment shall cease.
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(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 of 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 rt recovered as if they were included in the decree. [Explanation.-For the removal of doubts, it is hereby declared that the expression "the act required to be done" covers prohibitory as well as mandatory injunctions.]
7. The moot question, as observed earlier, is as to whether learned Executing Court was right in observing that the wilful disobedience and violation of judgment and decree dies with the defaulter.
For deciding this issue, certain judgments on the subject may be noticed:
8. At the earliest point of time is the judgment rendered by the Bombay High Court in Amritlal Vadilal vs. Kantilal Lalbhai, AIR 1931 Bombay 280 wherein it was held that the decree for injunction does not run with the land and in the absence of any ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 6 statutory provision, such a decree cannot be enforced against the surviving members of a joint family or .
against a purchaser from a judgment-debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under section 50 of the Code the decree can be executed against them and so also of against the transferees from the legal representatives.
9. In Manilal Lallubhai Patel vs Kikabhai rt Lallubhai, AIR 1931 Bombay 482, the Bombay High Court held that where a decree for an injunction had been obtained against the father and the son had not been joined as a party and the father died during the pendency of the execution petition, the decree can be enforced under section 50 of the Code against the son as his legal representative by proceeding under order 21 rule 32 of the Code.
10. A Division Bench of Rajasthan High Court in Mubarak Begam and another vs Sushil Kumar and others, AIR 1957 Rajasthan 154 held that since the judgment debtor dies, his property devolves upon his heirs, and therefore, if the decree holder wants to satisfy the decree from the property which is inherited ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 7 by them, then he must bring on record the legal representatives of the judgment debtor and so long as .
they are not impleaded, he cannot take steps which would effect their rights adversely.
11. Similar reiteration of law is found in the full Bench judgment of the Hon'ble Calcutta High of Court in Minor Smt. Shanti Devi vs. Khandubala Dasi and others, AIR 1961 Calcutta 336.
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12. A Division Bench of the Hon'ble Karnataka High Court in Ramchandra Deshpande vs. Laxmana Rao Kulkarni, AIR 2000 Karnataka 298 has held that the transferee judgment debtor is a person claiming under the original judgment debtors as their successor-in interest within the meaning of section 146 CPC and, as such, the decree holder can maintain an application for execution of the decree against him.
13. Hon'ble High Court of Kerala in Kathiyammakutty Umma vs. Thalakkadath Kattil Karappan and others, AIR 1989 Kerala 133, while relying upon section 50 of the Code, held that where a judgment debtor dies before a decree is fully satisfied, ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 8 the decree holder can apply to the executing court for implementation of the same against the legal .
representatives of the deceased and such legal representatives shall be liable to the extent of the property which has come to their hands by way of inheritance.
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14. Similar reiteration of law is found in the judgment of the Hon'ble Punjab and Haryana High rt Court in Idrish vs. Jaikam and others, (2009) 156 PLR 32.
15. Learned Single Judge of the Punjab and Haryana High Court in Lajwanti vs. Anoop Kumar, Civil Revision No. 6983/2013 decided on 24.9.2014 after placing reliance upon the judgment rendered by the Karnataka High Court in Ramachandra Deshpande's and its own High Court judgment in Idrish's case (supra) held that where the judgment debtor dies before the decree has been fully satisfied, the decree holder can apply to the Executing Court for implementation of the same against the legal representatives of the deceased.
::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 916. Relying upon the aforesaid exposition of law, Mr. Ashok Kumar Tyagi, learned counsel for the .
petitioner, would vehemently argue that the findings recorded by the learned executing court are clearly erroneous as the same are based on a total misconception of law, and therefore, deserve to the set of aside.
17. As against the aforesaid contention, Mr. rt Desh Raj Thakur, learned counsel for the respondent, would rely upon the judgment rendered by the Shivappa Basavantappa Devaravar vs. Babajan, 1999 (Suppl.) Civil Court Cases 98 (Karnataka) to contend that the injunction is a personal remedy against a person, in particular, and therefore, once the person dies, the cause of action dies with him and does not pass on to the legal representatives.
18. In addition thereto, he would also contend that even on earlier occasion, the respondent had been arrayed as one of the judgment debtors in the Execution Petition and the same was held to be not maintainable by the Executing Court vide its decision dated 29.1.2011 and in view of said decision having ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 10 attained finality, the present petition is not maintainable.
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19. Reliance is further placed on the judgment rendered by the Hon'ble Bombay High Court in Mohd.
Osman vs. Dr. Devid, 2011 (3) Civil Court Cases 42 (Bombay) to contend that a decree in injunction is a of decree in personam and the order of injunction does not run with the land, and therefore, it would be rt impermissible to execute the decree against the legal representatives of the deceased judgment debtor or transferee of judgment debtor, who is the purchaser pendente lite.
20. Having considered the rival submissions of the learned counsel for the parties, it can be taken to be more than settled that a decree for permanent injunction can be executed by the decree holder or his legal representatives against the judgment debtor or his heirs or even the transferee of the judgment debtor, who is the purchaser pendente lite.
21. As regards the judgments relied upon by the learned counsel for the respondent, after having gone through the same, I find that the ratio laid down ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 11 therein has been totally misconstrued and misinterpreted.
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22. In Shivappa's case(supra), the case was still at the appellate stage when the defendant-
appellant died and it was under these peculiar facts and circumstances that the Hon'ble High Court of of Kerala held that once a man dies, the cause of action dies with him and does not pass on to his legal rt representatives.
23. Now adverting to the judgment rendered by the Hon'ble Bombay High Court in Mohd. Osman's case (supra), it would be noticed that the ratio laid down in Amritlal Vadilal's case (supra) was re-
affirmed and in fact supports the contention of the petitioner. Relevant observations read as under:
"[7] The Division Bench of this Court in a case of"Krishnabai PandurangSalagare and others Vs. Savlaram Gangaram Kumtekar, 1927 AIR(Bom) 93, has held thus :
"Here the transfer was not under the authority of the Court, and it was made during the pendency of a contentious proceeding in execution of this decree. It seems to me that this transfer cannot be allowed to affect the rights of the present plaintiff. He is entitled to such order as he would have obtained under the darkhast if ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 12 there had been no transfer. If the mere fact of the transfer were accepted as a ground for disallowing his application .
for execution, it would mean that the transfer is allowed to affect the rights of the plaintiff, which would be contrary to the provisions of S.52 of the Transfer of Property Act."
Even the Division Bench of this Court in a case of "Amritlal Vadilal Vs. Kantilal Lalbhai, 1931 AIR (Bom) 280, which the learned counsel for the appellant has of relied has observed thus:
"The decree for injunction does not run with the land and in the absence of any statutory provision, such a rt decree can not be enforced against the surviving members of a joint family or against a purchaser from a judgment-
debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under Section 50 the decree can be executed against them and so also against the transferees from the legal representatives, under Section 52, T.P. Act. On the same principle, viz., that they are bound by the result of the execution proceedings under S.52, T.P. Act. The transferees from the original judgment-debtor during the pendency of execution proceedings against him, can be held to be similarly bound and are liable to be proceeded against in execution."
[8] The Division Bench of the Karnataka High Court in a case of "Ramachandra Deshpande Vs. Laxmana Rao Kulkarni, 2000 AIR(Kar) 298, relying on the aforesaid judgment of our High Court has held that a decree for injunction could be executed against the successor in interest of the deceased judgment debtor as well. Transferee pendente lite for all puiposes be the representative in interest of the judgment debtor."
::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 1324. Adverting to the second contention raised by the learned counsel for the respondent that the .
execution petition against the respondent is not maintainable as the execution petition against him already stands dismissed on 29.1.2011, I find that respondent was impleaded in the execution petition of when his father was very much alive. Obviously, once the suit was only against the father of the respondent rt Sh. Govind Singh, therefore, the execution petition against the son, i.e. the present respondent was not at all maintainable at that stage.
25. Therefore, the order passed by the Executing Court at an earlier occasion on 29.1.2011 dismissing the Execution Petition against the present respondent is of no consequences, as the respondent is now sought to be impleaded in an entirely new capacity as legal representative in place of the original judgment debtor, who had died during the pendency of the execution petition.
26. In view of aforesaid discussion, the view taken by the learned court below is clearly erroneous, ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP 14 and therefore, not sustainable in the eyes of law and is accordingly set aside.
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27. Learned court below shall restore the Execution Petition and the Application to its original numbers and then proceed to decide the same in accordance with law.
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28. Having said so, the present petition is disposed of, so also the pending application(s), if any, rt leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
30.11. 2016 *awasthi* ::: Downloaded on - 15/04/2017 21:38:37 :::HCHP