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KERALA HIGH COURT
K. Harilal, J.
Jihas —Petitioner
versus
Salim & Ors. —Respondents
O.P.(C) No.3877 of 2011
Decided on 6.2.2014
(ii) Transfer of Property Act 1882—Section 52—Civil Procedure Code 1908—Sections 11, 50 & 146, read with Order 21, Rule 16, Explanation—Doctrine of res judicata/lis pendens- Beneficial provisions—Must be construed liberally—Assignee of a debt could execute of the decree obtained by the assigner by invoking Section 146—The principle under Section 52 of 1882 Act is to avoid multiplicity of litigation and similar is the basic principle of Section 11 CPC— Decree obtained for permanent injunction by a decree holder will be binding on the JD as well as its assignee. (Para 9 to 13)
(iii) Civil Procedure Code 1908—Section 94—Grant of injunction by executing court- Section 94 is enabling basic provision—It empowers the executing Court to pass an order of injunction and other interim relief, where ever necessary. (Para 16)
Facts of the case
The decree holders filed civil suit against defendants for perpetual injunction against proposed construction. The dispute was settled by joint compromise petition under which the decree holder agreed to allow the JD to raise construction of a building having ground floor plus two floors and J.D.’s agreed to raise construction of building having ground floor and two floors only in the scheduled property. It was contended that the JD’s have violated the decree alleging that defendants have started construction of third floor and prayed for injunction regarding further construction and also filed application for commission. It was contended by the respondents that they purchased the property from J.D’s and some other persons and that since they were not party to the suit as well as to the compromise it was not binding on them.
Findings of the Court
The principle embodied in Section 52 of the Transfer of Property Act is to avoid multiplicity of litigation on the reason that the owner of the property had parted with the right and possession over the property pending adjudication of the lis. It is to be borne in mind that, even before the passing of the decree, where any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with any party to the suit or person so as to affect the right to any other party thereto, under any decree or order which may be passed therein except the authority of the court, in short, if the decree that may be passed is binding on the pendente lite assignee, there could be no difficulty in holding that the decree for injunction obtained by the plaintiff with respect to a property is binding on the assignee of the property, after passing of the decree. The decree granting injunction directing the owner of the land to do or prohibiting him not to do a particular act or thing in the plaint schedule property is binding on the subsequent assignees and such decree cannot be said to be purely personal against the original judgment debtor alone, as it is a restriction on enjoyment of the property against which the decree is passed. Needless to say, such decree is binding on subsequent assignees and it can be enforced against them also. The decree holder shall not institute fresh suit on each and every occasion of assignment in view of the general policy of law well founded on principles underlying in various laws. In short such decree runs with the land notwithstanding the change of ownership.
Result: Petition dismissed.
The judgment primarily addresses whether a decree of permanent injunction runs with the land and is binding on subsequent assignees. It affirms that such decrees are not merely personal but are restrictions on the enjoyment of the property itself, and therefore, they bind future owners or assignees of the land. The court emphasizes that the decree for injunction is enforceable against subsequent purchasers, regardless of whether they were parties to the original suit or not, and that the decree remains effective even after transfer of ownership (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
In the specific case, the petitioner, who purchased the property after the decree was passed, was held to be bound by the injunction decree because it pertains to the property itself, and such decrees run with the land. The court rejected the argument that the decree was not binding on him due to his change in status and ownership, ruling that the decree remains valid and enforceable against him (!) (!) .
Furthermore, the court clarified that the executing court has the authority to grant injunctions and interim relief during the execution process if necessary, reinforcing the court's power to prevent violations of the decree while proceedings are ongoing (!) (!) .
Overall, the court dismissed the petition, affirming that the injunction decree is binding on subsequent owners and that the executing court can issue interim orders to uphold the decree's enforcement, thereby preventing violations and ensuring the decree's effectiveness.
K. Harilal, J.—The petitioner is the 5th defendant in E.P No.355 of 2011 in O.S.No.1264 of 2006 on the files of the Court of the Principal Munsiff, Ernakulam as well as the 5th respondent in EA No. 538 of 2011 filed therein. E.P.No.355/2011 was filed for the execution of the compromise decree passed in O.S.No.1264/2006. This O.P. is filed under Section 227 of the Constitution of India challenging the impugned order passed in EA No. 538 of 2011 referred above. EA No. 538 of 2011 was filed by the decree holders under Section 151 of the Code of Civil Procedure to pass an interim order restraining the judgment debtors from constructing the third floor or making any form of further construction above the second floor in the building situated in the plaint schedule property during the pendency of execution petition.
The judgment debtors had filed a counter opposing the interim order prayed for by the decree holders.
2. The facts of the case is as follows: The decree holders who are seven in numbers filed the above suit OS No.1264 of 2006 against five defendants for perpetual injunction. The subject matter of the suit was the proposed construction in the plaint schedule property having an extent of 30 cents. The plaint schedule property belongs to the defendants 1 to 4. The 5th defendant was a builder-company represented by its managing director. Later, the dispute between the decree holders and judgment debtors was settled by a joint compromise petition, which was filed before the trial court as I.A.No.6836 of 2008. In that compromise, the petitioner herein also was a signatory as the Managing Director representing the 5th judgment debtor company. After recording the compromise, the court below decreed the suit in terms of the compromise on 29/08/2008. As per clause 1 of the terms of compromise, the decree holders agreed to allow the judgment debtors 1 to 5 to construct a building having ground floor plus two floors in the plaint schedule property on the ordinary foundation. According to second clause, the judgment debtors 1 to 5 agreed to construct a building having ground floor plus two floors only in the plaint schedule property strictly in terms of the Kerala Municipality Building Rules and by constructing an ordinary foundation as basement for the building. The other clauses are not question in controversy in this petition.
3. It is the case of the decree holders that the judgment debtors have violated the decree by acting in violation of the terms of the compromise. More specifically, the decree holders contended that though the judgment debtors 1 to 4 are prohibited from constructing a multi storied building having more than second floor in the plaint schedule property, the defendants have started the construction work for the third floor in violation of the decree. In the I.A., they have prayed for passing an order of injunction restraining the judgment debtors from constructing third floor or making any form of further construction above the second floor of the building in the plaint schedule property pending execution petition. Along with the execution petition, the decree holders filed a commission application for local inspection and the commission appointed by the court had filed Ext.C1 report.
4. The judgment debtors entered appearance and the 5th defendant filed a counter affidavit for and on behalf of the judgment debtors. He contented that the construction in the plaint schedule property is not being done by the judgment debtors but by him in his individual capacity. His case is that he had purchased the plaint schedule property from the judgment debtors 1 to 4 and some other persons who are not parties to the suit, by way of sale deed No.2962 of 2009, which is marked as Ext.B1. Since he is not a party in his individual capacity to the suit as well as to the compromise, the compromise decree passed by the court is not binding upon him as the alleged work is going to be done in his personal capacity. Secondly,
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