Punjab-Haryana High Court
Idrish vs Jaikam And Others on 30 July, 2009
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CR No. 26 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No. 26 of 2008
Date of Decision: 30.7.2009
Idrish
....Petitioner.
Versus
Jaikam and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Sachin Mittal, Advocate for the petitioner.
Mr. S.K. Bawa, Advocate for the respondents.
AJAY KUMAR MITTAL, J.
In this revision petition filed under Article 227 of the Constitution of India, the petitioner raised his sole grievance against the order dated 16.11.2007 passed by the executing court, whereby an application filed for impleading the legal heirs of Abdul Rehman, judgment-debtor, the execution petition under Order 21 Rule 32 of the Code of Civil Procedure (for short "the Code") was declined and the execution petition was consigned to the record room.
Briefly stated, the facts of the case are that the petitioner had filed a suit for permanent injunction against Abdul Rehman, predecessor-in-interest of the respondents, which was dismissed by the trial court vide judgment and decree dated 26.4.1995. However, the appeal carried by the petitioner was allowed and the suit was decreed CR No. 26 of 2008 -2- by the lower appellate court vide judgment and decree dated 11.1.1996 which was affirmed by this Court in regular second appeal vide judgment and decree dated 16.5.2000. The petitioner thereafter filed execution petition under Order 21 Rule 32 of the Code with the averment that the judgment-debtor, i.e. Abdul Rehman was not obeying the decree which was passed in his favour and had started changing the nature of the property and, therefore, action be taken against him. During the pendency of the execution petition, Abdul Rehman had died. Accordingly, the petitioner filed an application to implead the legal heirs of deceased Abdul Rehman. The executing court dismissed the said application vide order dated 16.11.2007 and ordered that the execution petition be consigned to the record room which has given cause of action to the petitioner to file the present revision petition.
Learned counsel for the petitioner submitted that the executing court has erred in rejecting the application for impleading the legal heirs of deceased Abdul Rehman and in consigning the execution petition to the record room as the execution petition can be enforced against the legal heirs also on the death of the original judgment-debtor as per Section 50 of the Code. He has placed reliance upon a judgment of Kerala High Court rendered in Kathiyammakutty Umma v. Thalakkadath Kattil Karappan and others, AIR 1989 Kerala 133 in support of his submission.
On the other hand, Mr. S.K. Bawa, learned counsel for the respondents (legal heirs of deceased Abdul Rehman) has submitted that the decree had conferred a right on the person who is a party to the decree and is operative only in personam against the defendant and not CR No. 26 of 2008 -3- in rem and was, thus, not enforceable against the legal heirs of Abdul Rehman. According to the learned counsel, the executing court was right in declining the application for impleading the legal heirs in the execution petition and also consigning the same to the record room.
I have heard the learned counsel for the parties and have perused the record with their assistance.
I find merit in the submission made by the learned counsel for the petitioner.
Section 50 of the Code reads thus:-
"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."
A plain reading of the aforesaid provision shows that where a judgment-debtor dies before the decree has been fully satisfied, the decree-holder can apply to the executing court for CR No. 26 of 2008 -4- implementation of the same against the legal heirs of the deceased and under sub-section (2), it has been provided that the legal heir shall be liable only to the extent of the property of the deceased which has come to his hands by way of inheritance. The aforesaid provision has been interpreted by Kerala High Court in Kathiyammakutty Umma's case (supra), wherein it has been held as under:-
"4. Section 50 of the Code of Civil Procedure (for short 'the Code') enables the holder of a decree to execute the same against legal representatives of the deceased judgment-debtor. In such execution the decree holder is subject to a restriction in sub-section (2) that the execution shall only be to the extent of the property of the deceased which has come to the hands of the legal representative. The limitation imposed by sub-sec. (2) applies generally in cases of money decrees. In the case of a decree of injunction, the modes of execution are prescribed in O. 21 R. 32 of the Code. Sub-rule (1) enables the decree holder to enforce the decree by detention of the judgment-debtor in the civil prison or by attachment of his properties or by both. Sub-rule (5) is an additional mode to be followed in execution of the decree for injunction. There is no inhibition in R. 32 that the modes of execution prescribed therein cannot be exercised against the legal representatives of the judgment-debtor. In other words, what is CR No. 26 of 2008 -5- permitted in S. 50 of the Code is not denied or even curtailed in O. 21, R. 32. S. 146 of the Code enables taking of proceedings or making of applications against any one who claims under the person against whom such proceedings or applications could have been taken or made. The right conferred in S. 146 is not in any way restricted by O. 21, R. 32. Hence it is not open to the legal representative of the judgment-
debtor in a decree for injunction to contend that he is not liable under the decree. There is no dispute in this case that the judgment-debtors had right over the property which lies near the property in respect of which the decree for injunction was granted. The suit was filed in view of the boundary dispute over the respective properties. The boundary claimed by the plaintiff was upheld in the suit and hence the decree was passed by the trial court. In such a case, law does not impose any inhibition on the decree holder in executing the decree for injunction, after the death of the original judgment-debtor against the legal representatives claiming under the said judgment- debtor."
The decree was passed in favour of the petitioner on 11.1.1996 which was affirmed on appeal by this Court on 16.5.2000 whereby Abdul Rehman was restrained from encroaching upon or raising any sort of construction over the suit property or changing the CR No. 26 of 2008 -6- nature of the same. After the death of Abdul Rehman, the suit property was inherited by his sons, i.e. the respondents. It is not disputed by the learned counsel for the respondents that the legal heirs are deriving or claiming a right in the property in dispute only on the basis of inheritance from their predecessor, i.e. Abdul Rehman, and had no independent rights therein. Therefore, the submission of the learned counsel for the respondents that the decree operated only in personam against their father, i.e. Abdul Rehman and could not be executed against them does not carry any substance.
In view of the above, the order dated 16.11.2007 is set aside and the matter is remitted to the executing court to proceed further in accordance with law.
The parties through their counsel are directed to appear before the executing court on 22.9.2009 for further proceedings in the matter in accordance with law.
July 30, 2009 (AJAY KUMAR MITTAL) gbs JUDGE