Indian Kanoon - Search engine for Indian Law

1. This revision is by the legal representatives of the second judgment-debtor in O.S. No. 227 of 1975 on the file of the Munsiff's Court of Punaloor. The respondent-decree-holder obtained a decree against the second judgment-debtor, the father of the revision petitioners, their brother who figured as the first judgment-debtor, and their mother who figured as the third judgment-debtor for a perpetual injunction restraining the judgment debtors from trespassing into the decree schedule property, taking income therefrom, destroying the boundaries thereof and from interfering with the rights of the decree-holder to take income from the property and from in any manner causing disturbance to his possession. The Execution Petition, E.P. 118 of 1985 was filed against judgment-debtors 1 and 3 and the other legal representatives of the second judgment-debtor, the father complaining that they had violated the decree granted to the decree-holder. An objection was filed by the legal representatives of the second judgment-debtor contending that since the decree was one for injunction the decree-holder was not entitled to execute the decree against the legal representatives of the second judgment-debtor. They also denied that they have done anything against the terms of the decree.

2. An enquiry was conducted by the executing Court in the execution petition. That Court held that the legal representatives of the second judgment-debtor were responsible for cutting a tree from the decree schedule property in violation of the decree. Observing that such violations of decree should be dealt with seriously the executing Court issued a warrant for the arrest of the revision petitioners. It is this order that is challenged in revision by the legal representatives of the deceased second judgment-debtor.

4. The contention on behalf of the legal representatives of the deceased judgment-debtor is that even if the terms of the decree granted against the deceased is violated by his legal representatives, the decree-holder is not entitled to approach the executing Court for relief against them but will have to seek his remedies against the legal representatives elsewhere. It is contended that the enforcement of the decree could only be under Section 50 of the Code of Civil Procedure. Only in a case where the judgment-debtor himself had violated the decree it might be possible to proceed against the legal representatives for that act of violation by the judgment-debtor himself. The position would be different when the violation itself is by the legal representatives of the deceased judgment-debtor and in such a situation the executing Court did not have the jurisdiction or authority to proceed with an execution against the legal representatives. Learned counsel for the decree-holder on the other hand submitted that the dispute between the decree-holder and the judgment-debtors, who were the father, mother and brother of the revision petitioners was regarding the boundary between the properties of the two parties, that a decree had been passed determining the limits of the properties and relief had been granted to the decree-holder, that in the nature of the decree which relates to immovable property it is binding not only on the judgment-debtor but on his legal representatives who inherit the adjacent property belonging to the judgment-debtor. It is submitted that it will be oppressive to hold that such a decree could not be executed against the legal representatives and a fresh suit has to be filed against the legal representatives to determine the identical question that was involved in the earlier litigation and in respect of which there was a conclusive determination by the decree. It is submitted that in any view, there should ba a distinction between an injunction decree which did not rel'ate to property and one which came into existence in view of the dispute relating to property and which related to the property. In the latter case, the decree for injunction had necessarily to be obeyed by those who inherited property of the judgment-debtor and in case they failed to obey the decree, the executing Court had the jurisdiction to execute the decree.

7 Then the only question is whether the judgment-debtors need be arrested as ordered by the Co. is below. We think that the judgment-debtors must be given an opportunity to avert the order for their arrest by compensating the plaintiff in a reasonable manner for their act of violation. While therefore we maintain the order of the Court below we order that the warrant issued by the Court below need not be enforced on condition that the judgment-debtors pay into the executing Court towards compensation to the decree-holder a sum of Rs. 5000 within a period of one month from this date. If the said sum of Rs. 5000 is deposited, the same will be disbursed to the decree-holder and further proceedings in the present Execution Petition will be terminated. In case the judgment-debtors do not deposit the said amount within the time stipulated, the Court below will enforce its order and issue the necessary further directions in the present execution petition itself. It is made clear that the decree-holder would be entitled to move the executing Court in case of any further violation of the decree by the judgment-debtors and if such further violation is made, it will be dealt with by the executing Court very seriously and on the basis of the ratio of this order that the decree is enforceable as against the additional judgment-debtors as well. We therefore confirm the order of the executing Court with the modification that the judgment-debtors are given an opportunity to compensate the decree-holder for their violation and avert the enforcement of the present order for their arrest and on their failure to do so directing the executing Court to proceed further and implement its order. Under the circumstances of the case, we make no order as to costs.