Karnataka High Court
Basavant Dundappa vs Shidalingappa Sidaraddi on 4 March, 1986
Equivalent citations: ILR1986KAR1959
ORDER Kulkarni, J.
1. This is a revision by the judgment-debtor against the Order dated 25-2-1985, passed by the Principal Munsiff, Jamkhandi, in Execution Case No. 45/84, allowing I.A. No. II.
2. The certified copy of the execution Petition has been produced before me. It shows that the present decree-holder is a transferee from the heir of the original decree-holder-Kallawwa Sidraddi in O.S. No. 101/35. It also shows that the present judgment-debtor is also a transferee from the heirs of the original judgment-debtor-Ummanna. The said suit was for permanent injunction and it was decreed. Now the present transferee-decree-holder wants to execute the decree against the judgment-debtor who is a transferee from the heirs of the original judgment-debtor. Initially, I.A. No. I had been filed by the decree-holder requesting that the tamarind fruit of the three trees in the land in dispute should be auctioned. The Court dismissed I.A. No. I holding that the Execution Petition was not maintainable. Again I.A. 11 was filed by the decree-holder requesting the Court to auction the tamarind fruit of the three trees in the land in dispute between the parties or to call upon the judgment-debtor to deposit Rs. 400/- as security. I.A. II was allowed by the Court below. Hence, the revision by the judgment-debtor.
3. When a similar application I.A. No. I had been & led by the decree-holder and when it was dismissed on the ground that the execution Petition is not maintainable, I really wonder how I.A. No. II can be entertained again. The principles of res judicata would apply to the present case as the same matter is between the same parties. Admittedly, the order passed on I.A. No. I has not been challenged either by preferring an appeal or revision. When that order stands, the present I.A. No. II filed for the same reliefs would be barred by principles of res judicata.
4. As already stated above, the present decree-holder is a transferee from the heir of the original decree-holder and the present judgment-debtor is also a transferee from the heirs of the original judgment-debtor.
5. In Mulla's' Code of Civil Procedure, Fourteenth Edition, Vol. I, at page 359 it has been stated as :
"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 Order 21 Rule 32 (Code of 1882, Section 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. 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."
6. Similarly, in A.I.R. Commentaries on the Code of Civil Procedure, 9th Edition, Vol. 1, Page 859 it has been stated as :
"18. Decree for injunction :- As has been seen in Note 21 to Section 47, an injunction does not run with the land and cannot be enforced under the section against a purchaser of the property from the defendant or against a person who is not his legal representative."
7. Therefore, the present execution Petition itself, as rightly held by the Court below while disposing of I.A.I., is not maintainable. When execution Petition itself is not maintainable I.A. II filed in that execution Petition does not deserve to be considered at all. Therefore, in my opinion, the Court below erred in allowing I.A. II.
8. Under these circumstances, the revision is allowed. The order passed by the Court below and impugned in this revision, is set aside. No costs.