Judgment:
ORDER
P.S. Narayana, J.
1. This civil revision petition is filed against the order in E.P.No.6 of 1992 in O.S.No.201 of 1982 on the file of the District Munsif, Huzurabad.
2. The revision petitioner is the decree holder - plaintiff in the suit. The decree holder - plaintiff filed a suit for the relief of permanent injunction relating to immovable property in O.S.No.201 of 1982 on the file of the District Munsif, Huzurabad and a decree was passed on 26-8-1987. It is averred that since the son and grandson, respondents 4 and 5, who are the legal representatives of judgment debtor No.2, who died, had been violating the decree for permanent injunction, the present E.P. is filed for the purpose of executing the said decree in accordance with Order 21, Rule 32 of the Code of Civil Procedure (CPC). The Court below had dismissed the E.P. on the ground that the decree for perpetual injunction cannot be executed against the legal representatives of the judgment debtor No.2 i.e., the son and grandson.
3. Sri P.V.Srinivasa Rao, learned counsel for the petitioner had submitted that the view expressed by the Court below that a decree for permanent injunction cannot be executed against the legal representatives, is totally unsustainable in law. It was further contended that, may be, that a decree for permanent injunction normally can be stated as an action in person am and it may be binding on the parties to the litigation, but that does not mean that such a decree cannot be executed against the legal representatives especially in the light of the principles underlying Section 11, Section 146 CPC and also Section 52 of the Transfer of Property Act. The learned counsel for the petitioner also contended that the observation of the Court below that Order 21, Rule 11-A CPC was not complied with, also is not sustainable. Even otherwise, the Court below could have given an opportunity to rectify such a defect, if any. Hence the Court below had committed a jurisdictional error and accordingly the impugned order is liable to be set aside.
4. Sri B.Nalin Kumar, learned counsel appointed as Amicus Curiae contended that the relief for permanent injunction is ordinarily a relief in person am and such a decree is operative and binding on the parties to the lis since it can be executed as between the parties to the litigation and not a stranger. The legal representatives of the deceased judgment debtor also may fall under 'stranger' and hence ordinarily the decree for perpetual injunction cannot be put in execution against such non-parties to the litigation. Further, the learned counsel also contended that the filing of the affidavit under Order 21 Rule 11 A CPC is mandatory and in the absence of filing of this affidavit, the Court below is justified in dismissing the E.P.
5. Having heard the contentions advanced by both the counsel in this regard, at the outset I may point out that as far as respondent No.4 is concerned, since he is the son of the original judgment debtor No.2, he can be said to be legal representative. But, however, I do not think that the grandson (respondent No.5 herein) will fall under the caption of the 'legal representative' of the deceased grand father. This is a factual aspect.
6. Be that as it may, the important question of law that has been raised and canvassed by both the counsel is whether a decree for permanent injunction be put in execution against the legal representatives of the judgment debtor. It is no doubt true that an action for permanent injunction is an action in person am, but that does not mean that a broad proposition can be laid down that under no circumstances a decree for perpetual injunction can be executed against the legal representatives of the defendants-judgment debtors. When once a decree for perpetual injunction was suffered by the defendants-judgment debtors, I am of the opinion that the legal representatives who normally step into the shoes of the original parties are also bound by such a decree. In fact, reliance was placed by the learned counsel for the petitioner on the following decisions namely, K.Umma v. T.K. Karappan1 and Rajappan v. Sankaran Sudhakaran2. These decisions are directly on the point. The learned counsel for the petitioner also had placed reliance on Mohd. Jamal and Ors. V. Mohd. Sharfuddin (died) by LRs3, which is not an authority covering this point directly. But, however, the learned counsel had drawn my attention to certain paragraphs in the said decision which may lend support to such a view.
7. Then coming to the present case on hand, as far as respondent No.4 is concerned, since he is the son of the judgment debtor No.2 as legal representative, as against him only the decree for perpetual injunction can be executed and for that limited extent the Court below has to proceed with the E.P. further in accordance with law. In case the Court below feels that an affidavit in accordance with Order 21, Rule 11 A CPC is mandatory, an opportunity may be given to the petitioner - decree holder to file proper affidavit and to further proceed with the matter.
8. In the light of the foregoing discussion, I am of the view that the impugned order is liable to be set aside so far as it relates to respondent No.4, who is the son of the judgment debtor No.2, and as far as respondent No.5, the grandson of the judgment debtor No.2 is concerned, the order of the Court below is justifiable. Hence, the impugned order dated 30-8-1993 in E.P.No.6 of 1992 in O.S.No.201 of 1982 is set aside to the extent indicated above.
9. The C.R.P. is allowed partly and the Court below is directed to proceed with E.P.No.6 of 1992 so far as respondent No.4 is concerned. No order as to costs.
10. Before parting with the matter, I record my appreciation for the services rendered by the learned counsel for the petitioner, Sri P.V. Srinivasa Rao and Sri B.Nalin Kumar, Amicus Curiae.