Murlidhar s/o Bhima Vaidya and another vs Nababbi Yousufkhan, deceased through legal heirs and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 249

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.B. Mhase, J.
Murlidhar s/o Bhima Vaidya another..... Petitioners.
Versus
Nababbi Yousufkhan, deceased
through legal heirs others..... Respondents.
Civil Revision Application No. 764 of 1988 with Writ Petition No. 1692 of 1988, decided on 31-3-1999.
Advocates appeared :
Sudhir D. Kulkarni, in C.R.A. No. 764/1988 and W.P. No. 1692/1988, for petitioners.
Suresh Kulkarni in Civil Rev. Appli. No. 764 of 1988, for respondents No. 1-A, 1-B, 1-C.
S.B. Shaikh, in Civil Rev. Appli. No. 764 of 1988, for res. No. 2-A, 2-B.
S.M. Kulkarni in W.P. No. 1692 of 1988, for respondents No. 1 to 3 and 6.

Headnote:
CIVIL PROCEDURE - Execution of decree - Decree for perpetual injunction - Whether executable against purchasers from judgment debtor - Transfer of Property Act, 1882, Section 52 - Code of Civil Procedure, 1908, Order 21, Rule 32 - Bombay Tenancy and Agricultural Lands Act, 1948, Sections 29, 85, 85-A.
Fact of the Case:

The original tenant Nababbi had filed a Regular Civil Suit No. 157 of 1966, wherein a decree of perpetual injunction came to be passed against the landlord in Regular Civil Appeal No. 357 of 1967 on 19-6-1969. On the basis of that decree, the original tenant Nababbi filed Execution Petition No. 8 of 1970 before the Civil Judge, Junior Division, Koparagaon, wherein along with the landlord, the purchasers/petitioners were also joined as a judgment debtors and it is contended that even though the decree is against the landlords/original defendants, however, the said decree is binding as against the purchasers in view of section 52 of the Transfer of Properly Act, namely, the purchase of the land by the purchasers being hit or affected by the principle of lis pendens and, therefore, the prayer was made that the purchasers be kept in civil prison and that in order to see that the decree is executed, the possession warrant be issued as against the landlord and the purchasers.
Finding of the Court:

The decree of perpetual injunction even though found to be personal one, can be enforced as against the purchaser pending litigation from the judgment debtor. The 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 the purchaser from the judgment debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under section 50, the decree can be executed against them and so also against the transferees from the legal representatives, under section 52 of the Transfer of Property Act. On the same principle viz, that they are bound by the result of the execution proceedings under section 52 of the Transfer of Property Act, the transferees from the original judgment debtor during the pendency of execution proceedings against him can be held to be similarly bound and are liable to be proceeded against in execution.
Issues: Whether the decree for perpetual injunction can be enforced as against the purchasers from the judgment debtor?
Ratio Decidendi: The decree of perpetual injunction even though found to be personal one, can be enforced as against the purchaser pending litigation from the judgment debtor. The 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 the purchaser from the judgment debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under section 50, the decree can be executed against them and so also against the transferees from the legal representatives, under section 52 of the Transfer of Property Act. On the same principle viz, that they are bound by the result of the execution proceedings under section 52 of the Transfer of Property Act, the transferees from the original judgment debtor during the pendency of execution proceedings against him can be held to be similarly bound and are liable to be proceeded against in execution.
Final Decision: Revision application writ petition dismissed.

JUDGMENT - S.B. MHASE, J.:---This Court by order dated 20-12-1988, while admitting the Civil Revision Application, has directed that the Civil Revision Application to be heard along with Writ Petition No. 1692 of 1988. In view of this order both these matters are listed together for final hearing. The parties in both the proceedings are same and the subject-matter of immovable property involved is also the same. However, both the proceedings arise in between the parties from the different proceedings, namely, writ petition arises from the proceedings under section 29 of the Bombay Tenancy and Agricultural Lands Act filed by the respondents against the original landlord in which the petitioners also participated at a later stage and the order for delivery of the possession have been passed in favour of respondents upto the Maharashtra Revenue Tribunal in Revision Petition No. MRT/AH-V-3/88, decided on 14th September, 1988 and the said order is under challenge in the writ petition.

2. The Civil Revision Application arises from the order of the Civil Judge, Junior Division, passed on 19-11-1988 issuing the possession warrant against the revision petitioners in respect of the land Survey No. 108 of the village Korhale in Execution Petition No. 8 of 1970.

3. Before the points involved in these cases are considered, it is necessary to state the facts.

4. The land Survey No. 108 from the village Korhale originally belonged to deceased Shaikh Chimanlal and Halimabi, widow of Hussain and after the death of Shaikh Chimanlal, Shaikh Lal Chimanlal along with Halimabi Hussain inherited the said property and the said Shaikhlal Lal and Halimabi jointly leased out the suit land to deceased Nababbegum on 11-7-1960 for a period of ten years for cultivation of sugarcane at the rental of Rs. 300/- per annum. The present respondents No. 1 to 3 in the writ petition are the heirs of deceased tenant Nababbi and thus they inherit the rights of deceased Nababbi in respect of the suit land. The respondents No. 4, 5 and 6 from the writ petition and the respondents No. 2-A and 2-B are the heirs of Shaikh Lal Chimanbhai. The petitioners in both the matters are purchasers of the suit land from Shaikh Lal Chimanbhai, namely the respondents No. 4, 5 and 6. For the sake of convenience, the respondents No. 4, 5 and 6 in the writ petition i.e. respondents No. 2-A and 2-B in the Civil Revision Application are referred to as "landlords", while the respondents No. 1 to 3 from the writ petition i.e. the respondents No. 1-A, 1-B and 1-C from the Civil Revision Application are referred to as the "tenants" and the petitioners, who are purchasers, are referred to as the "purchasers".

5. The dispute initially started in the year 1966 between the original tenant and the landlords. It appears that on or about 15-6-1966, the original landlord obstructed the original tenant Nababbi in cultivation of land and, therefore, Regular Civil Suit No. 157 of 1966 was filed by the original tenant against the landlord. In the said suit relief claimed was of perpetual injunction. However, the said suit was dismissed on 30-9-1966. During the pendency of the said suit, there was no temporary injunction. Thereafter the Regular Civil Appeal No. 357 of 1967 was filed and it was decided on 19-6-1969 by the Extra Assistant Judge, Ahmednagar. The said appeal was allowed and a decree for perpetual injunction was passed as against the respondent/landlord. However, it is interesting to note that the decree of the trial Court was passed on 30-9-1966, as stated earlier, but before that, it appears that on 22-9-1966 i.e. few days earlier to the dismissal of the suit by the trial Court, the respondent/landlord dispossessed the original tenant Nababbi and while the appeal was pending, it appears that on 9-10-1967, the application under section 29 of the Bombay Tenancy and Agricultural Lands Act was filed by the original tenant Nababbi and the said application was allowed for the first time on 23-2-1972,

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