Permanent injunction decree against judgment debtors legal representatives is executable. Maxim actio personalis moritur cum persona not applicable-SC
ABCAUS Case Law Citation:
ABCAUS 1135 (2017) (02) SC
Question involved:
The question involved in the matter was executability of decree for permanent injunction against the legal representatives of judgment-debtor
Brief Facts of the Case:
In the instant case, the suit of the plaintiff for permanent injunction of the disputed property was decreed against the judgment-debtor. After suffering decree for permanent injunction in 2012, the judgment-debtor died. The heirs of the judgment-debtor in violation of the decree for permanent injunction tried to forcibly dispossess the decree-holder from the property. As a result, the decree-holder filed execution petition within two years of the passing of the decree. However, It was resisted by the heirs of judgment-debtor on the ground that they were not bound by the decree for permanent injunction. It was argued that the force of decree lapsed with the death of judgment-debtor and the decree was incapable of enforcement against them as the judgment debtor had died.
Reliance was placed on the legal maxim “actio 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 by the order of the Court, the respondents preferred a writ petition in the Hon’ble Karnataka High Court which was allowed. The High Court held that the decree for permanent injunction cannot be enforced against the legal heirs of judgment-debtor as injunction does not travel with land.
Aggrieved by the order of the High Court, the appellant was before the Hon’ble Supreme Court.
Observations made by the Supreme Court:
The Hon’ble Supreme Court observed that a perusal of section 50(2) CPC leaves no doubt that a decree for permanent injunction can be executed against the judgment debtor or his legal representatives. The Court opined that normally personal action dies with person but this principle has application to limited kinds of causes of actions.
The Hon’ble Apex Court noted the following judgments which were relevant to the dispute in hand.
| Muthukaruppa Pillai & Anr. v. Ganesan (1995) Supp 3 SCC 69 | 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 |
| Ramachandra Deshpande v. Laxmana Rao Kulkarni AIR 2000 Karnataka 298 | 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 pendent lite was saved by section 52 of the Transfer of Property Act.
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 |
| Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 SC 1124 | 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 him does not therefore affect the liability of his estate |
|
D’souza J. v. Mr. A. Joseph AIR 1993 Karnataka 68, |
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. |
|
Rajappan and Ors. v. Sankaran Sudhakaran AIR 1997 Kerala 315 |
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 decree for injunction would be binding not only against the judgment-debtor personally but all those who claim through him. A |
|
Krishnabai Pandurang Salagare v. Savlaram Gangaram Kumtekar AIR 1927 Bombay 93 |
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. |
| Amritlal Vadilal v. Kantilal Lalbhai AIR 1931 Bombay 280 |
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. |
| Manilal Lallubhai Patel v. Kikabhai Lallubhai AIR 1932 Bombay 482 | 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. |
|
Hajaresab v. Udachappa 1984 ILR Karnataka 900 |
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 Hon’ble Court opined that 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 was 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.
It was observed that the maxim “actio personalis moritur cum persona” is limited to certain class of cases 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.
The Hon’ble Court observed that 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.
Held:
The appeal was allowed and the impugned order of the High Court was set aside with direction to 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 to enforce the decree in accordance with law.
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