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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3007-3008 OF 2017

[Arising out of SLP [C] Nos. 1483-1484 of 2015]

Prabhakara Adiga … Appellant

Vs.

Gowri & Ors. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1.Leave granted.

2.Singular question involved in the matter is executability of decree for

permanent injunction against the legal representatives of judgment-debtor.

3.A suit was filed by the appellant registered as Original Suit No.83/2007 in

the Court of II Additional Civil Judge, Kundapura, with respect to immovable

property described in Schedule ‘A’ of the plaint. The plaintiff got converted the

land for non-agricultural/residential purposes. The plaintiff was in possession and

enjoyment of the property and defendant had no concern with the same. However,

he tried to remove and destroy the wooden fence and made an effort to forcibly

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dispossess the plaintiff. Hence the suit was filed. The defendant had denied the

averments and contended that there was no division of the land and had asserted

his ownership and possession. The conversion order of land was also illegal.

4.It was found on the basis of the registered partition deed that the suit

schedule property was allotted to the plaintiff and he was in possession thereof.

The defendant on partition in his own family had been allotted 1.58 acres and

defendant has sold 1.68 acres of land, though the land allotted to him was only

1.58 acres in Survey No.32/5. Plaintiff was found to be in possession of Schedule

‘A’ property on the date of the suit. It was held that the defendant had no right, title

or interest in the disputed land. Accordingly, the suit of the plaintiff for permanent

injunction was decreed vide judgment and decree dated 13.9.2012.

5.After suffering decree for permanent injunction on 13.9.2012, the

judgment-debtor Divira Bolu died on 10.12.2012. The heirs of the judgment-debtor

in violation of the decree for permanent injunction tried to forcibly dispossess the

decree-holder from Schedule ‘A’ property. Thus, the decree-holder filed execution

petition within two years of the passing of the decree. It was resisted by the heirs

of judgment-debtor on the ground that they were not bound by the decree for

permanent injunction. The force of decree lapsed with the death of

judgment-debtor. The decree was incapable of enforcement against them as the

judgment debtor had died. Reliance was placed on the legal maxim “actio

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personalis moritur cum persona”. The executing court held that the heirs of

judgment-debtor were bound by the decree and directed them to furnish an

undertaking to the effect that they would not disobey the decree of the court.

Aggrieved thereby, the respondents preferred a writ petition in the High Court of

Karnataka at Bangalore which has been allowed by the impugned order. The High

Court has held that the decree for permanent injunction cannot be enforced against

the legal heirs of judgment-debtor as injunction does not travel with land.

6.It was submitted by learned counsel representing the appellant that the High

Court has erred in law in holding the decree for permanent injunction to be

inexecutable as against the respondents/heirs of judgment-debtor. He has relied

upon section 50, section 146, Order 21 Rule 16, Order 21 Rule 32 and section 47

CPC in order to take home the point. On the other hand, learned counsel appearing

on behalf of the respondents has also referred to few decisions to contend that the

decree for permanent injunction does not go with the land. Thus, the same is

inexecutable against the legal heirs of the judgment-debtor.

7.It is apparent in the instant case that on the basis of the title of the plaintiff

over the disputed land, decree for permanent injunction had been granted. It was

found that the defendant had sold the property which had fallen to his share in the

partition of his own family. It was held in the suit that the defendant was not the

owner of the disputed property and it belonged to the plaintiff. In execution

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proceedings filed within 24 months of decree, a question arose whether after the

death of judgment debtor, his heirs could start interference in the property and

plaintiff was obliged to file another suit for injuncting them or could execute the

decree for permanent injunction which was granted in his favour as against the

heirs of judgment-debtor.

8.Section 50 of the CPC has been referred to and the same is extracted

hereunder :

“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.”

9.Section 146 CPC has also been referred to and the same is extracted

hereinbelow :

“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.”

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10The provisions of Order XXI Rule 16 and Order XXI Rule 32 of CPC have

also been referred to and they are also extracted below :

“16. Application for execution by transferee of decree

— Where a decree or, if a decree has been passed jointly in

favour of two or more persons, the interest of any decree-holder

in the decree in transferred by assignment in writing or by

operation of law, the transferee may apply for execution of the

decree to the Court which passed it; and the decree may be

executed in the same manner and subject to the same conditions

as if the application were made by such decree-holder :

Provided that where the decree, or such interest as

aforesaid, has been transferred by assignment, notice of such

application shall be given to the transferor and the

judgment-debtor, and the decree shall not be executed until the

Court has heard their objections (if any) to its execution :

Provided also that, where a decree for the payment of

money against two or more persons has been transferred to one

of them, it shall not be executed against the others.

[Explanation.—Nothing in this rule shall affect the

provisions of section 146, and a transferee of rights in the

property, which is the subject matter of the suit, may apply for

execution of the decree without a separate assignment of the

decree as required by this rule.]”

“32. Decree for specific performance for restitution of

conjugal rights or for an injunction.— (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 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 specific

performance or for an injunctions been passed is a corporation,

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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

where, at the end of [six months] from the date of the

attachment, no application to have the property sold has been

made, or if made has been refused, the attachment shall cease.

(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 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 recovered as if they were

included in the decree.”

11.Section 50 CPC deals with execution of decrees of all kinds including that of

permanent injunction. Section 146 CPC provides that where any application

which can be made by or against any person, it may be made by or against any

person claiming under him except as otherwise provided in the Code. Order 21

Rule 16 deals with execution of decree by a transferee with which we are not

concerned in this case. Order 21 Rule 32 provides the mode for execution of

decree for injunction, restitution of conjugal rights and specific performance.

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Section 50 CPC which is a specific provision with respect to execution of decree

against legal representatives, would be attracted read with Order 21 Rule 32 CPC.

12.It is crystal clear from a perusal of section 50(2) CPC that a decree for

permanent injunction can be executed against the judgment debtor or his legal

representatives. In Muthukaruppa Pillai & Anr. v. Ganesan (1995) Supp 3 SCC 69,

a question arose with respect to executability of the decree for injunction in the

backdrop of facts that the plaintiff had filed a suit for restraining the

defendant-appellant from interfering with her rights as Hakdar and Pujari. The suit

was decreed and it was held that the said rights were heritable and partible. On

aforesaid foundation, decree was passed. The successor-in-interest of the plaintiff

decree-holder had put the decree for execution. It was contended that the decree for

injunction was personal in nature and could have been enforced by the

decree-holder only. This Court held that there was nothing in the decree for

permanent injunction to hold that it lapsed with the death of the plaintiff and it

could be executed by heirs of decree holder. This Court has laid down thus :

“1. This judgment-debtor’s appeal is directed against judgment

and order of the High Court of Madras. The appellant was a

defendant in a suit filed by the predecessor-in-interest of the

respondent for permanent injunction restraining the appellant

from interfering with her right as Hakdar and Pujari of two

temples in Kottarakurichi village. The suit even though decreed

by the trial court was dismissed by the first appellate court. But

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the decree of the trial court was restored by the High Court,

which was to the following effect:

“[T]he defendants, their workmen, their agent, etc. be and

are hereby restrained by an order of permanent injunction

from interfering with the plaintiff’s enjoyment of the

plaint schedule property (described hereunder) till the end

of 1965 Margali 30th (i.e., till January 13, 1965) and in

every alternative years in future….”

The judgment of the High Court was delivered in 1969. The

decree-holder died in June 1981. The respondent who claims to

be adopted son of the plaintiff in the original suit and also her

legatee filed an application for execution in 1981 under Section

146 and Order XXI Rule 16 of the Civil Procedure Code. It was

resisted by the appellant on various grounds. The application

was allowed against which the appellant filed revision. During

pendency of the execution proceedings, the respondent filed an

application before the Deputy Commissioner, Hindu Religious

and Charitable Endowments, Tirunelveli, Tamil Nadu, claiming

the rights to do puja and enjoy the share of income from the two

temples. The application was allowed by the Deputy

Commissioner, but the order was set aside by the

Commissioner, Hindu Religious and Charitable Endowments,

Madras in revision filed by the appellant. It was held that the

respondent could not claim better and more rights than what

were granted in favour of his predecessor-in-interest by the civil

court. Against this order of the Commissioner, the respondent

filed a writ petition. Both, the revision filed by the appellant

and writ petition filed by the respondent were decided by a

common order. The High Court maintained the order of the trial

court in execution, except to certain extent. The writ petition

filed by the respondent was dismissed.

2. The principal challenge to the order passed by the High Court

is on the nature of the decree. It is claimed that the decree being

personal, it could not have been executed by the respondent

who claimed to be successor-in-interest of the plaintiff in the

suit. The submission appears to be devoid of any merit. In the

main suit, out of which these execution proceedings have

arisen, it was clearly held by the High Court that the rights were

heritable and partible. In view of this finding, it is not clear as

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to how can the appellant raise the argument of decree being

personal in nature. Apart from that, the decree passed by the

trial court, copy of which has been produced by the learned

counsel for the respondent, the authenticity of which is not

disputed by the appellant, and which has been extracted earlier,

clearly indicates that the injunction granted did not impose any

such restriction expressly nor could it be impliedly held that it

lapsed with the death of the plaintiff.”

This Court has laid down that legal representatives of decree holder can execute

decree for permanent injunction relating to property or right which is heritable and

partible. When such is the situation, in our opinion, it would be open to decree

holder to execute decree against successor of interest of judgment-debtor also.

13.In Ramachandra Deshpande v. Laxmana Rao Kulkarni AIR 2000 Karnataka

298, a question arose with respect to executability of the decree for permanent

injunction restraining the defendant from obstructing plaintiff’s use and enjoyment

of their right of way through the backyard of the defendant’s house, and

subsequently, the house was sold by judgment-debtor-defendant. It was held that

the decree could have been executed against the transferee judgment-debtor. The

rule that a decree for injunction cannot be enforced against a purchaser from a

judgment-debtor since injunction does not run with the land for it is a remedy in

personam is not applicable considering the nature of rights adjudicated upon. The

Court held that enforcement of the decree against legal heirs of the deceased was

saved by section 50 CPC and as against the purchaser of the suit property pendente

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lite was saved by section 52 of the Transfer of Property Act. The High Court has

relied upon the decisions of this Court in Muthukaruppa Pillai & Anr. v. Ganesan

(supra) and in Kanhaiya Lal v. Babu Ram (dead) by LRs. & Anr. (1999) 8 SCC

529. The High Court has observed that if the remedy of injunction granted by a

decree is in respect of any heritable and partible right, it does not get extinguished

with the death of a party thereto, but enures to the benefit of the legal heirs of the

decree-holder, as such a decree could be executed against the successor-in-interest

of the deceased judgment-debtor as well. Similar is the decision in G.M.

Venkatappa v. Anjanappa & Anr. ILR 2006 Karnataka 4456, wherein also the

question of executability of the decree for permanent injunction arose.

14.Normally personal action dies with person but this principle has application

to limited kinds of causes of actions. In Girijanandini Devi v. Bijendra Narain

Choudhary AIR 1967 SC 1124, this Court while considering the question whether

the decree for account can be passed against the estates, also considered the maxim

“actio personalis moritur cum persona” and observed that the postulation that

personal action dies with the person, has a limited application. It operates in a

limited class of actions, such as actions for damages, assault or other personal

injuries not causing the death of the party and in other actions where after the death

of the party the relief granted could not be enjoyed or granting it would be

nugatory. Death of the person liable to render the account for property received by

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him does not therefore affect the liability of his estate. This Court has observed

thus:

“(14) Finally, it was urged that since defendants Mode

Narain and Rajballav Narain had died during the pendency of

the proceedings, the High Court was incompetent to pass a

decree for account against their estates. Rajballav who was

defendant No.6 died during the pendency of the suit for the

Trial Court and Mode Narain who was defendant No.1 in the

suit died during the pendency of the appeal in the High Court.

But a claim for rendition of account is not a personal claim. It

is not extinguished because the party who claims an account,

the party who is called upon to account dies. The maxim

“action personalis moritur cum persona” a personal action dies

with the person, has a limited application. It operates in a

limited class of actions ex delicto such as actions for damages

for defamation, assault or other personal injuries not causing

the death of the party, and in other actions where after the death

of the party the relief granted could not be enjoyed or granting

it would be nugatory. An action for account is not an action for

damages ex delicto, and does not fall within the enumerated

classes. Nor is it such that the relief claimed being personal

could not be enjoyed after death, or granting it would be

nugatory. Death of the person liable to render an account for

property received by him does not therefore affect the liability

of his estate. It may be noticed that this question was not raised

in the Trial Court and in the High Court. It was merely

contended that because the plaintiff Bijendra Narain was

receiving income of the lands of his share no decree for

accounts could be made. The High Court rejected the

contention that no account would be directed in favour of the

plaintiff on that account. They pointed out that the mere fact

that the plaintiff was in possession of some portion of properties

of the joint family since 1941 cannot possibily absolve the

defendants, who were in charge of their dealings with the

management of the properties, from rendering accounts of the

joint family estate. The plaintiff was since September 1941

severed from the joint family in estate and also in mess and

residence, and he was entitled to claim an account from the

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defendants from September 1941, but not for past dealings.

The fact that the plaintiff is in possession of some of the

properties will, of course, have to be taken into account in

finally adjusting the account.”

15.The views of the High Courts which are relied upon are by and large in

favour of executability of decree. Of course it would depend on the right litigated,

findings recorded and the nature of decree granted. In D’souza J. v. Mr. A. Joseph

AIR 1993 Karnataka 68, a Single Bench of the Karnataka High Court held that

when a decree for injunction against a person can be enforced even against his son,

it is obvious that a similar logic should hold good even in the case of the death of

the plaintiff who has obtained a decree. There should not be any legal impediment

for a heir of a decree-holder to enforce the decree for injunction against the

judgment-debtor. There is no such legal impediment on the principle that

injunction does not run with the land. Yet another Division Bench of the Kerala

High Court in Rajappan and Ors. v. Sankaran Sudhakaran AIR 1997 Kerala 315,

also considered the question of violation of decree by the legal representatives of

judgment-debtor and has laid down that a decree for permanent injunction can be

executed against them. It was observed that if a decree for injunction compels

personal obedience, it in appropriate cases would not be enforced against the legal

representatives. However, if subject matter of the suit and the act complained of

was on the basis of ownership of an adjacent property of the other side, then such a

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decree for injunction would be binding not only against the judgment-debtor

personally but all those who claim through him. A decree for perpetual injunction

was passed restraining the judgment-debtors from trespassing into the decree

schedule property destroying the boundaries thereof and from interfering with the

rights of the decree-holder. The legal representatives of the judgment-debtor

violated the injunction. The Court, in our opinion, rightly held that the executing

court could execute the decree of perpetual injunction against the legal

representatives of the judgment-debtor.

16.In Krishnabai Pandurang Salagare v. Savlaram Gangaram Kumtekar AIR

1927 Bombay 93 it was held that when a decree is passed against a

judgment-debtor, it can on his death be enforced not only against the legal

representatives, but also against the transferee from those representatives who take

under an alienation pending the execution proceedings.

17.In Amritlal Vadilal v. Kantilal Lalbhai AIR 1931 Bombay 280 it has been

observed that a decree for injunction does not run with the land and cannot be

enforced in absence of the statutory provision against surviving member of joint

family or against purchaser from judgment-debtor but can be enforced against legal

representatives joined under Section 50 CPC and so also against transferees from

original judgment-debtor as per Section 52 of the Transfer of Property Act. In

Ganesh Sakharam Saraf v. Narayan Shriram Mulaye AIR 1931 Bombay 484 it was

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held that though an injunction is a personal remedy and does not run with the land,

ordinarily a decree for an injunction can be executed only against the persons

against whom the injunction is issued and cannot be executed against any other

person in the absence of a statutory provision. If an injunction decree is capable of

being enforced against a person other than the judgment-debtor by virtue of a

statutory provision contained in Section 50 CPC, it can be executed equally against

the son who inherits the estate of his father as well as against one who was joint

with the father and brought on the record as his legal representative. It was also

observed that where a decree had been passed against the father as a manager and

representative of the joint family, it could be executed against his son who

represented the joint family.

18.In Manilal Lallubhai Patel v. Kikabhai Lallubhai AIR 1932 Bombay 482 a

Single Bench has held that where a decree for an injunction has been passed

against the father, the son not being joined as a party, and the father dies during the

pendency of the execution proceedings, the decree can be enforced under Section

50 CPC against the son as his legal representative by proceeding under Order 21,

Rule 32.

19.In Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil 1974 ILR

Karnataka 1506, a compromise decree was passed in favour of the plaintiff for

permanent injunction restraining the judgment-debtor from interfering with the

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plaintiffs possession and enjoyment of the suit property. Subsequently, the plaintiff

sold his suit property to the assignee and also assigned compromise decree in his

favour. The assignee took out execution against the judgment debtor. It was held

that the assignee of a compromise decree was not competent to execute the decree.

It was further held that the compromise decree for injunction was personal and did

not run with the land. However, it was a case of assignment and not covered by

section 52 of the Transfer of Property Act.

20.The High Court of Karnataka in Hajaresab v. Udachappa 1984 ILR

Karnataka 900 has also held that under the provisions of Section 50 CPC the legal

representatives of the deceased defendant against whom the decree for injunction is

passed would be liable for violation of that decree. It was also observed that

Section 50 CPC does not make any distinction between a decree for permanent

injunction and a decree of any other nature. The High Court has referred to the

‘Execution Proceedings’ by Shri Soonavala, 1958 Edition thus:

“In Execution Proceedings by Shri Soonavala, 1958

Edition, on page 386 it is said: -

"A decree for injunction does not run with the land

and cannot be enforced against a purchaser of the property

from the defendant. But it can be enforced against a legal

representative of the deceased j.d. Plaintiff obtained a

decree against the defendant, restraining the latter from

obstructing the access to light and air to her windows. The

plaintiff applied for execution praying that the portion of

the defendant's house which obstructed her windows

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should be pulled down. While this application was pending

the defendant died and his son and heir was brought on the

record. The lower Courts directed that the decree should be

executed as prayed for and directed the appellant (the son

and heir of the deceased defendant) to pull down the

obstructing portion of the house in question within a given

time. It was contended for the appellant that the original

defendant having died, the injunction could not be

enforced against his son (the appellant) as an injunction

does not run with the land. It was held that having regard

to the provisions of Section 50, the injunction ordered

against the deceased defendant might be enforced against

his son and his legal representative.

The author has further said on the same page -

"But a decree for injunction cannot be enforced

against a purchaser of the property from the defendant or

against a person who is not his legal representative. The

plaintiff obtained a decree restraining the defendant in his

user of certain land and applied for execution. Mean while

the land had been sold in execution of another decree

against the defendant and the purchaser at the Court sale

obtained possession. The plaintiff thereupon applied that

the purchaser should be made a party to the execution

proceedings and that execution should go against him as

well as against the defendant, It was held that no order for

execution could be made. It could not go on against the

defendant as all his interest in the land had been sold in

execution of a decree, and it could not go on against the

purchaser as an injunction does not run with the land."

The author has further said -

"A decree for injunction does not run with the land

and in the absence of any statutory provision, such a

decree cannot be enforced against the surviving members

of a joint family or against a purchaser from j.d. But

where the sons of the j.d. are brought on the record as his

legal representatives under Section 50, the decree can be

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executed against them and so also against the transferees

from the legal representatives, under Section 52, Transfer

of Property Act. On the same principle, viz., that they are

bound by the result of the execution proceedings

under Section 52, T.P. Act, the transferees from the original

j.d. during the pendency of the execution proceedings

against him, can be held to be similarly bound and are

liable to be proceeded against in execution".

The author has further said on page 387 as -

"A decree awarding certain reliefs by way of

injunction was passed in favour of the plaintiff. Before

execution was applied for, the defendant died and the

darkhast proceeded against two widows of the deceased

j.d. as his legal representatives. During the pendency of the

appeal in execution the legal representatives transferred

their property to a stranger. A question was raised that

execution could not proceed against the legal

representatives and their transferee, as the relief granted by

way of injunction was purely personal and the original j.d.

having died, the injunction has ceased to be operative, it

was held that the darkhast originally filed against the legal

representatives was in order under Section 50, C.P.C., and

was also good against the transferee as the transfer was not

made under the authority of the Court and, being effected

during the pendency of a contentions proceeding in

execution of the decree, could not be allowed to affect the

right of the plaintiff under Section 52, T.P. Act. (Krishnabai

- v. - Sawlaram, I.L.R. 51 Bom. 37; 100 LC. 582 : A.I.R.

(1927) Bom. 93; also see, 9 Bom. L.R. 1173; I.L.R. 26

Bom. 140, 283.) An injunction is a personal remedy and

does not run with the land. A decree for an injunction

therefore can be executed only against the persons against

whom the injunction is issued and cannot be executed

against any other person in the absence of a statutory

provision. If an injunction decree is capable of being

enforced against a person other than the j.d. by virtue of a

statutory provision, e.g. Section 50 , C.P.C, it can be

executed equally against the son who inherits the estate of

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his father as well as against one who was joint with the

father and is brought on the record as his legal

representative. A d.h. sought to execute a decree for

permanent injunction obtained against the father in a joint

Hindu family against his sons. It was held that the decree

being passed against the father as a manager and

representative of the joint family could be executed against

his son who represented the joint family; that the son

taking the joint family estate by survivorship was to be

regarded as a 'person' who in law represented the estate of

a deceased person within the meaning of the first part of

the definition in Section (2) (11), C.P.C"

(emphasis supplied)

21.In Basavant Dundappa v. Shidalingappa Sidaraddi ILR (1986) Karnataka

1959 relied on by the respondents, it was held that when an application had been

filed by the decree-holder for execution and similar application was dismissed on

the ground that it was not maintainable, another application for the same relief

stands barred.

22.In Shivappa Basavantappa Devaravar v. Babajan 1999 (4) Kar. L.J. 293,

relied on by respondents, where in a suit for permanent injunction, injunction was

granted and was upheld by the first Appellate Court and second appeal was filed

and the legal representatives of judgment-debtor wanted to prosecute the same, a

single Bench applied the principle of the maxim “actio personalis maritur cum

persona” and held that the legal representatives had no right to pursue the appeal.

In our opinion, it cannot be said that single Bench has correctly appreciated the

legal position as suit was based on title in the aforesaid decision. At the same time,

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the Single Judge has also observed that if the injunction had been obtained by

plaintiff against the defendant and if plaintiff died, legal representatives would

have been entitled to the benefit of injunction. In our opinion, the High Court has

erred in dismissing the appeal. The said maxim had no application, thus the

decision cannot be said to be laying down the correct proposition of law and is

overruled.

23.Another decision which has been referred to is Abdul Kardar Haji Hiroli v.

Mrs. Judaih Jacob Cohen 1969 BLR 749 in which the question arose about the

executability of the decree containing covenants running with the land and the

same was passed with the consent of the parties, the Court held that it was not

executable against the third party and the purchaser of the land. The question does

not arise for consideration as the present case is not the case of transfer or

execution by or against the purchasers of the land.

24.Learned author Mulla in his Commentary on the Code of Civil Procedure

(18

th

Edition) Vol I, while analyzing the provisions of Section 50 CPC has referred

to various decisions of the High Courts (Sakarlal v. Parvatibai (1902) 26 Bom 283,

Amritlal v. Kantilal AIR 1931 Bom 280, Ganesh v. Narayan AIR 1931 Bom 484,

Dayasbhai v. Bapalal (1902) 26 Bom 140, Vithal v. Sakharam (1899) 1 Bom LR

854, Jamsetji v. Hari Dayal (1908) 2 Bom 181, Chothy Theyyathan v. John

Thomas AIR 1997 Ker 249, Krishnabai v. Savlaram AIR 1927 Bom 93, Kalpuri

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Ellamma v. Nellutla Venkata Lakshmi 2008 (72) All Ind Cas 669) with respect to

the executability of decree for injunction and observed at pages 687-688 thus:

“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 O 21, r 32 (Sakarlal v. Parvatibai, (1902) 26

Bom 283; Amritlal v. Kantilal, AIR 1931 Bom 280 : (1931) 33

Bom LR 266. Code of Civil Procedure 1882, s 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 (Ganesh v. Narayan, AIR

1931 Bom 484 : (1931) 55 Bom 709). 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 (Dayasbhai v.

Bapalal, (1902) 26 Bom 140; Vithal v. Sakharam, (1899) 1 Bom

LR 854; Jamsetji v. Hari Dayal, (1908) 32 Bom 181), when the

decree is one restraining the owner of the property from

blasting rocks in his property on a finding that such blasting

would injuriously affect the adjacent property of the

decree-holder. When once a decree is passed, it is obvious that

the defendant in the suit, judgment-debtor, would be precluded

from carrying on blasting operation in his property. To say that

when he is succeeded by the others, they would not be bound

by the restrain relating to the enjoyment of the particular

property is to derogate from the principle of the public policy

that there shall be no second litigation in respect of the same

right and the same property. It cannot be the policy of law that

every time an assignment of the decree schedule property take

place, the decree-holder should institute a fresh suit against the

assignee, so as to prevent them from disobeying the decree

obtained by the decree-holder against the original owner of the

property (Chothy Theyyathan v. John Thomas, AIR 1997 Ker

249. See notes to s 47, ‘Representatives No. (6)-Purchaser of

Property’). The Bombay High Court has held that an injunction

can be enforced against a person who has purchased while

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execution proceedings are pending, by virtue of the doctrine of

lis pendens (Krishnabai v. Savlaram, AIR 1927 Bom 93 :

(1927) 51 Bom 37).

In execution of a decree for perpetual injunction, the

liability of the legal representatives of the judgment-debtors is

limited to the extent of interference which was restrained

through such decree. It is only such legal representatives who

defy the decree that can be proceeded against (Kalpuri Ellamma

v. Nellutla Venkata Lakshmi, 2008 (72) All Ind Cas 669).”

25.In K. Umma v. T.K. Karappan AIR 1989 Ker 133 the High Court of Kerala

has observed that where a decree for injunction is obtained against a sole

judgment-debtor, restraining him from obstructing the plaintiff in erecting a fence

on the boundary of his property, the decree can be executed against the legal

representatives of the judgment-debtor, if he dies.

26.In our considered opinion the right which had been adjudicated in the suit in

the present matter and the findings which have been recorded as basis for grant of

injunction as to the disputed property which is heritable and partible would enure

not only to the benefit of the legal heir of decree-holders but also would bind the

legal representatives of the judgment-debtor. It is apparent from section 50 CPC

that when a judgment-debtor dies before the decree has been satisfied, it can be

executed against legal representatives. Section 50 is not confined to a particular

kind of decree. Decree for injunction can also be executed against legal

representatives of the deceased judgment-debtor. The maxim “actio personalis

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moritur cum persona” is limited to certain class of cases as indicated by this Court

in Girijanandini Devi v. Bijendra Narain Choudhary (supra) and when the right

litigated upon is heritable, the decree would not normally abate and can be

enforced by LRs. of decree-holder and against the judgment-debtor or his legal

representatives. It would be against the public policy to ask the decree-holder to

litigate once over again against the legal representatives of the judgment-debtor

when the cause and injunction survives. No doubt, it is true that a decree for

injunction normally does not run with the land. In the absence of statutory

provisions it cannot be enforced. However, in view of the specific provisions

contained in section 50 CPC, such a decree can be executed against legal

representatives.

27.Resultantly, we allow the appeals, set aside the impugned order passed by

the High Court and hold that the direction issued by the executing court that an

undertaking be furnished by the legal representatives to abide by the decree is

proper, failing which the executing court would proceed in a permissible mode in

accordance with law to enforce the decree under the provisions of Order XXI Rule

32 CPC. No costs.

…………………………J.

(Arun Mishra)

New Delhi; ………………………..J.

February 20, 2017. (Amitava Roy)