IMPORTANT POINT
Decree for permanent injunction can be executed against judgment debtor or his legal representatives.

JUDGMENT

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 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 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 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