Gudikandula Narasaiah Vs. Gudikandula Veeraiah and ors. - Court Judgment

Excerpt:
civil - grant of injunction - section 52 of transfer of property act, sections 11 and 146 of code of civil procedure, 1908 and order 21 rules 11a and 32 - suit for permanent injunction granted - whether such decree can be executed against son and grandson of deceased judgment debtor - son of deceased fall under caption 'legal representative' - decree for permanent injunction can be executed against legal representatives - held, dismissal of application for execution of decree against son of deceased not justified. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. orderp.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.

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.