Kerala High Court
P.A.Jihas vs Salim on 21 October, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935
OP(C).No. 3877 of 2011 (O)
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O.S.No.1264/2006 of the MUNSIFF'S COURT-I, ERNAKULAM
PETITIONER(S):
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P.A.JIHAS,
S/O.ABDUL RAHMAN, JEWEL NEST, VASANTH NAGAR
PALARIVATTOM, KOCHI-682025.
BY ADVS.SRI.T.U.ZIYAD
SMT.RAMEENA.P.K.
SRI.T.KRISHNAN UNNI (SR.)
RESPONDENT(S):
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1. SALIM, S/O. PADMANABHAN,
AGED 59 YEARS, SREE SABARI, BUILDING NO.33/1903 A
MEDICAL CENTRE ROAD BYE LANE, VENNALA, KOCHI-682028.
2. MRS.M.K.LEELA KUMARI,
W/O.MR.CHANDRASEKHARAN NAIR, AGED 55 YEARS, SREYAS
BUILDING NO.33/1904, MEDICAL CENTRE ROAD BYE LANE
VENNALA, KOCHI-682 028.
3. MRS.RAMLATH, W/O.MR.M.M.ABDUL RAHIM,
AGED 54 YEARS, RABWAN MANZIL, BUILDING NO.33/1905
MEDICAL CENTRE ROAD BYE LANE, VENNALA, KOCHI-682 028.
4. A.S.RAJEEVAN, S/O.LATE A.R.SANKARAN,
AGED 48 YEARS, ARAMURIPARAMBU, BUILDING NO.33/1906B
MEDICAL CENTRE ROAD BYE LANE, VENNALA, KOCHI-682 028.
5. N.P.RAVINDRAN,
S/O.LATE PARAMESWARA MENON, AGED 60 YEARS
ARAMURIPARAMBU, BUILDING NO.33/1900, THALIYIL LANE
VENNALA, KOCHI-682 028.
6. P.J.ALAXANDER, S/O.P.J.JOSEPH,
AGED 61 YEARS, PUTHUMANA HOUSE, BUILDING NO.33/1900
THALIYIL LANE, VENNALA, KOCHI-682 028.
7. THALIYIL RESIDENCE ASSOCIATION,
REG.NO.ER 704/06, VENNALA P.O., ERNAKULAM DISTRICT
REPRESENTED BY ITS SECRETARY.
8. JOSSY, S/O.THOMAS, AGED 45 YEARS,
PALAKKAPILLY, CHALIYIL LANE, VENNALA P.O.
EDAPALLY SOUTH VILLAGE, KOCHI-682028.
9. SUNNY, S/O. THOMAS, AGED 38 YEARS,
PALAKKAPILLY, CHALIYIL LANE, VENNALA P.O.
EDAPALLY SOUTH VILLAGE, KOCHI-682028.
10. TOMY, S/O. THOMAS, AGED 37 YEARS,
PALAKKAPILLY, CHALIYIL LANE, VENNALA P.O.
EDAPALLY SOUTH VILLAGE, KOCHI-682028.
11. BENNY, S/O. THOMAS, AGED 33 YEARS,
PALAKKAPILLY, CHALIYIL LANE, VENNALA P.O.
EDAPALLY SOUTH VILLAGE, KOCHI-682028.
12. JEWEL HOMES PVT. LIMITED,
JEWEL PLAZA, 2ND FLOOR, KALOOR
KOCHI-17, REPRESENTED BY ITS MANAGING DIRECTOR.
13. CORPORATION OF COCHIN,
REPRESENTED BY ITS SECRETARY, KOCHI-682 031.
R8,R9,R10,R11,R12 BY ADV. SRI.R.V.SUJIT KUMAR
R1 TO 7 BY ADVS. SRI.P.KESAVAN NAIR
SRI.K.G.CLEETUS
R13 BY ADVS. SRI.PRAVEEN K. JOY
SRI.P.K.SOYUZ,SC,COCHIN CORPORATION
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3877 of 2011 (O)
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 TRUE COPY OF THE DOCUMENT BEARING NO.2962/2009 OF
SRO, EDAPALLY.
EXT.P2 TRUE COPY OF THE PRIOR DEED BEARING NO.1115/73 OF
SRO, EDAPALLY.
EXT.P3 TRUE COPY OF THE BUILDING PERMIT DATED 21.10.2010
ISSUED BY THE 13TH RESPONDENT.
EXT.P4 TRUE COPY OF THE PLAINT IN O.S.1264 OF 2006 ON THE
FILE OF MUNSIFF'S COURT, ERNAKULAM.
EXT.P5 TRUE COPY OF THE JUDGMENT DATED 29.8.2008 IN
O.S.1264 OF 2006 ON THE FILE OF MUNSIFF'S COURT,
ERNAKULAM.
EXT.P6 TRUE COPY OF THE DECREE DATED 29.8.2008 IN
O.S.1264 OF 2006 ON THE FILE OF MUNSIFF'S COURT,
ERNAKULAM.
EXT.P7 TRUE COPY OF THE EXECUTION PETITION NO.355 OF 2011
IN O.S.1264 OF 2006.
EXT.P8 TRUE COPY OF THE INJUNCTION PETITION NO.518/2011
IN E.P.NO.355/2011 IN O.S.1264/2006.
EXT.P9 TRUE COPY OF THE ORDER DATED 22.11.2011 IN E.A.538
OF 2011 ON THE FILE OF MUNSIFFS' COURT, ERNAKULAM.
RESPONDENTS' EXHIBITS : NIL
//True copy//
P.A to Judge
STU
C.R.
K.HARILAL, J.
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O.P.(C) No.3877 of 2011
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Dated this the 6th day of February, 2014
J U D G M E N T
The petitioner is the 5th defendant in E.P No.355 of 2011 in O.S.No.1264 of 2006 on the files of the Court of the Principal Munsiff, Ernakulam as well as the 5th respondent in EA No. 538 of 2011 filed therein. E.P.No.355/2011 was filed for the execution of the compromise decree passed in O.S.No.1264/2006. This O.P. is filed under Section 227 of the Constitution of India challenging the impugned order passed in EA No. 538 of 2011 referred above. EA No. 538 of 2011 was filed by the decree holders under Section 151 of the Code of Civil Procedure to pass an interim order restraining the judgment debtors from constructing the third floor or making any form of further construction above the second floor in the building situated in the plaint O.P.(C) No.3877 of 2011 2 schedule property during the pendency of execution petition.
The judgment debtors had filed a counter opposing the interim order prayed for by the decree holders.
2. The facts of the case is as follows: The decree holders who are seven in numbers filed the above suit OS No.1264 of 2006 against five defendants for perpetual injunction. The subject matter of the suit was the proposed construction in the plaint schedule property having an extent of 30 cents. The plaint schedule property belongs to the defendants 1 to 4. The 5th defendant was a builder-company represented by its managing director. Later, the dispute between the decree holders and judgment debtors was settled by a joint compromise petition, which was filed before the trial court as I.A.No.6836 of 2008. In that compromise, the petitioner herein also was a signatory as the Managing Director representing the 5th judgment debtor company. After recording the compromise, the court below decreed the suit in terms of the compromise on 29/08/2008. As per O.P.(C) No.3877 of 2011 3 clause 1 of the terms of compromise, the decree holders agreed to allow the judgment debtors 1 to 5 to construct a building having ground floor plus two floors in the plaint schedule property on the ordinary foundation. According to second clause, the judgment debtors 1 to 5 agreed to construct a building having ground floor plus two floors only in the plaint schedule property strictly in terms of the Kerala Municipality Building Rules and by constructing an ordinary foundation as basement for the building. The other clauses are not question in controversy in this petition.
3. It is the case of the decree holders that the judgment debtors have violated the decree by acting in violation of the terms of the compromise. More specifically, the decree holders contended that though the judgment debtors 1 to 4 are prohibited from constructing a multi storied building having more than second floor in the plaint schedule property, the defendants have started the construction work for the third floor in violation of the decree. In the I.A., they O.P.(C) No.3877 of 2011 4 have prayed for passing an order of injunction restraining the judgment debtors from constructing third floor or making any form of further construction above the second floor of the building in the plaint schedule property pending execution petition. Along with the execution petition, the decree holders filed a commission application for local inspection and the commission appointed by the court had filed Ext.C1 report.
4. The judgment debtors entered appearance and the 5th defendant filed a counter affidavit for and on behalf of the judgment debtors. He contented that the construction in the plaint schedule property is not being done by the judgment debtors but by him in his individual capacity. His case is that he had purchased the plaint schedule property from the judgment debtors 1 to 4 and some other persons who are not parties to the suit, by way of sale deed No.2962 of 2009, which is marked as Ext.B1. Since he is not a party in his individual capacity to the suit as well as to the compromise, O.P.(C) No.3877 of 2011 5 the compromise decree passed by the court is not binding upon him as the alleged work is going to be done in his personal capacity. Secondly, at the time of entering the compromise, the building rules only permitted construction of ground plus two floors in that locality. It was in that circumstance, in the compromise, it was stated that the defendants shall construct only ground plus two floor building. Now, the building rule has been changed and according to the present rule in force, the judgment debtors are permitted to make construction of the ground floor plus three floor building and he had already obtained a valid permit from the Corporation and the construction is being carried out strictly in accordance with the permit granted by the Corporation. Since the act which is being done by him is one in his personal capacity as the absolute owner in possession of the property, the compromise decree wherein he represented the 5th respondent company is not binding on him.
O.P.(C) No.3877 of 2011 6
5. Heard both sides. The learned counsel for the petitioner advanced arguments challenging the findings of the court below that the compromise decree in which the petitioner represents the 5th judgment debtor company as Managing Partner is binding on him. Per contra, the learned counsel for the respondent advanced arguments justifying the above findings, on different perspective.
6. In view of the rival contentions, the question that emerges for consideration is whether a decree granting injunction directing the owner of the land to do or prohibiting him not to do a particular act or thing in his property is binding on the subsequent assignee of that property? Put it differently, whether the decree granting injunction to do or not to do a particular act or thing in the land, would run along with the land?
7. Apparently, going by the impugned order, it could be seen that the facts of the case are not disputed. The matter in dispute seems to be a legal issue. The specific allegation O.P.(C) No.3877 of 2011 7 against the petitioner is that in violation of the decree passed, the petitioner had proceeded with the construction of the third floor of the building in the plaint schedule property in violation of the decree in O.S.No.1264 of 2006. The above decree was passed in terms of the compromise entered between the plaintiff and defendant in the suit. It is also admitted that the petitioner was also a party in the suit as well as in the terms of compromise appended to the decree. But the argument advanced by the learned counsel for the petitioner is that, though, he is a signatory in the compromise as well as a party in the decree, the same is not binding on him at present, because after the passing of the decree, he has purchased the plaint schedule property and building therein and now he is the absolute owner in possession of the property. In short, the petitioner as the absolute owner in possession of the property is not liable to obey the decree which was passed against the 5th defendant company though he was also a party in the decree and O.P.(C) No.3877 of 2011 8 signatory in the terms of compromise as Managing Director of the company, which owned and possessed the plaint schedule property at the time of passing the decree.
8. Should the decree holder institute fresh suit against the new assignee so as to prevent the new assignee from disobeying the decree obtained by the decree holder against the assignor or the original owner, on every time the assignment of decree schedule property takes place.
9. The general principle of law founded on the doctrine of res judicata, lis pendens, etc., is that an assignee or a legal representative is bound by the decree obtained against the assignor or the predecessor in interest. This general principle is further seen recognized by Sec.146 of the CPC, Order 21 Rule 16 and the Explanation to that Rule, of the CPC, Sec.11 and Sec.50 of the CPC. Sec.146 of the CPC reads as follows:
"146. Proceedings by or against representatives.- Save as otherwise provided O.P.(C) No.3877 of 2011 9 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".
10. Sec.146 of the CPC was introduced for the first time in the Code of Civil Procedure, 1908 with the object of facilitating the exercise of the rights by person in whom they come to be vested and against whom an obligation or liability is cast, by devolution of assignment. This beneficial provision must be construed liberally so as to advance the object of the provision and that not in restricted or technical sense. Once a dispute with respect to the property is settled by a decree, it must be binding on assignees or legal representatives of both parties in the suit as the case may be. There shall not be any second litigation in respect of the same right over the same property on same cause of action. In K. Umma v. T.K. Karappan (AIR 1989 Kerala 133), this Court held that in a suit for injunction the decree can be O.P.(C) No.3877 of 2011 10 executed even against the legal representatives of the deceased judgment debtor even in a case where the decree is for injunction. The Apex Court in the decision in Jugalkishore Saraf v. Raw Cotton Co. Ltd., (1955 (1) SCR 1369) held that the assignee of the debt could execute the decree obtained by the assignor of the debt by invoking Sec.146 of the CPC provided that proceedings could be taken against any person claiming under him also. In Zila Singh V. Hazari [AIR 1979 SC 1066], the Apex Court held that, even in a case of pre-emption decree, the decree could be executed by assignee of the property in view of Section 146 of the Code of Civil Procedure. In Rajappan v. Sankaran Sudhakaran (1997 (1) KLT 748), this Court held that a decree granting perpetual injunction against trespass, taking income or destroying boundaries and against interfering with the right of decree holder to take income and causing disturbance is binding on legal representatives of deceased and those who claim through or under him.
O.P.(C) No.3877 of 2011 11
11. The principle embodied in Sec.52 of the Transfer of Property Act is to avoid multiplicity of litigation on the reason that the owner of the property had parted with the right and possession over the property pending adjudication of the lis. It is to be borne in mind that , even before the passing of the decree, where any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with any party to the suit or person so as to affect the right to any other party thereto, under any decree or order which may be passed therein except the authority of the court. In short, if the decree that may be passed is binding on the pendente lite assignee, there could be no difficulty in holding that the decree for injunction obtained by the plaintiff with respect to a property is binding on the assignee of the property, after passing of the decree.
12. Coming to Sec.11 of the CPC the basic principle is that there must be a finality for every litigation and a matter in issue once decided by a court of competent jurisdiction is O.P.(C) No.3877 of 2011 12 binding not only on the same parities in the suit but also parties under whom they or any of them claim or litigating under the same title. In Ifthikar Ahmed v. Syed Meharban Ali (AIR 1974 SC 749), the Apex Court held that when the cause of action for the second suit is merged in the judgment of the first one, it does not survive any more. Thus, res judicata oust the jurisdiction of the court itself. In Chothy Theyyathan v. John Thomas (1997 KHC 90) relying on the decision in Saila Bata Dassi v. Nirmala Sundari Dassi (1958 SCR 1287) and other various decisions. This Court held that:
"It must also be noted that the decree for injunction granted in this case is one relating to the decree B schedule property and preventing certain activities being carried on therein to the prejudice of the decree holder. Such a decree cannot be said to be purely personal against the original judgment debtors in the sense that it is not related to their obligation not to do anything in the decree schedule property. It is really a restriction on O.P.(C) No.3877 of 2011 13 enjoyment of the decree B schedule property and such a restriction would obviously bind the assignees of the original judgment debtors and could be enforced by the decree holder. Here, the decree was obtained by the decree holder for the more beneficial enjoyment of his own property, namely, decree A schedule and in enforcement a right claimed in him to restrain the enjoyment of the decree B schedule property belonging to the judgment debtors for the more beneficial enjoyment of his own property. I am of the view that, in such a situation, there is nothing in law which compels the court to take the view that the decree holder should go in for another suit against the transferee of the judgment debtor to continue the beneficial enjoyment which he has already secured by a decree, and the obligation imposed by the decree is lost on transfer of his property by the judgment debtor or when the transfer is effected by the judgment debtor during the pendency of that litigation".
13. In the light of the above discussions, it can be held O.P.(C) No.3877 of 2011 14 that decree granting injunction directing the owner of the land to do or prohibiting him not to do a particular act or thing in the plaint schedule property is binding on the subsequent assignees and such decree cannot be said to be purely personal against the original judgment debtor alone, as it is a restriction on enjoyment of the property against which the decree is passed. Needless to say, such decree is binding on subsequent assignees and it can be enforced against them also. The decree holder shall not institute fresh suit on each and every occasion of assignment in view of the general policy of law well founded on principles underlying in various laws. In short, such decree runs with the land, notwithstanding the change of ownership.
14. In the instance case the point to be decided is whether the decree is binding upon the petitioner, the Managing Director of the 5th judgment debtor company, who is also the present owner in possession of the plaint schedule property against which the decree is passed. O.P.(C) No.3877 of 2011 15
15. After passing of the decree the petitioner purchased the property by Ext.B1 assignment deed in the year 2009. He purchased the property from the original judgment debtors 1 to 4 and other co-owners. In view of the legal position stated above, the decree is fully binding upon the petitioner, being the person who purchased the property from the original judgment debtors 1 to 4, even if he is not a party in the decree. But he was one of the executant of the compromise decree, though his status was different. As rightly held by the court below such a person cannot be permitted to escape from the clutches of law under the guise of change in status. After purchasing the shares of the other judgment debtors he cannot be heard to say that the decree is not binding on him as his earlier status was a different one. The court below observed that the petitioner was trying to set up a clever adventure by abusing the process of the court. But I am of the opinion that his attempt was an ill-advised, misadventure by abusing the process of the court, rather than O.P.(C) No.3877 of 2011 16 a clever adventure. I find that the decree sought to be executed is binding on the petitioner as such.
16. Can the Execution Court grant injunction, while sitting in execution of the decree? I am also of the opinion that Section 94 is the enabling basic provision which empowers the execution court, also to pass order of injunction and other interim reliefs. Section 94(c) read as follows:
"94. Supplemental proceedings:- In order to prevent the ends of justice from being defeated the Court may; if it is so prescribed,-
(a) x x x x x x
(b) x x x x x x
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold".
Thus, the court below can be justified in granting temporary injunction to prevent ends of justice from being defeated by the conduct of the revision petitioner.
O.P.(C) No.3877 of 2011 17
17. There is no illegality or impropriety in any of the findings of the impugned judgment. The court below had perfectly exercised jurisdiction vested in it.
Hence this petition is devoid of merit and dismissed accordingly.
K.HARILAL, JUDGE.
Stu