Allowed

Kuriachen v. Ulahannan

Kerala HC10 Feb 2021OP(C)/2507/2018

Case brief

AI extract

What is this about?

This original petition allowed to set aside an order dismissing execution proceedings against a legal representative. The High Court held that Section 146 CPC permits execution of a perpetual injunction decree against the legal representative of the deceased judgment debtor, directing the lower court to proceed with execution and consider the plea of limitation.

What did the court decide?

Original Petition allowed; impugned order set aside; execution proceedings restored to file and disposed of within two months; respondent to be given opportunity to show cause regarding limitation.

Kuriachen Vs Ulahannan — Execution and Attachment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

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OP(C).No.2507 OF 2018

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E.P.NO.22/14 IN O.S.NO.119/1993 OF MUNSIFF'S COURT,MUVATTUPUZHA

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PETITIONER/DECREE HOLDER:

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KURIACHEN AGED 57 YEARS S/O.OUSEPH, KOOTTAPPILLIL HOUSE, KUNNACKAL KARA, VALAKOM VILLAGE

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BY ADV. SRI.M.V.PAULOSE

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RESPONDENTS/JUDGMENT DEBTORS:

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1 ULAHANNAN (DECEASED) S/O.VARKEY, THADATHIL HOUSE, KUNNACKAL KARA, VALAKOM VILLAGE, PIN 682316

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2 SABU T JOHN, AGED ABOUT 50 YEARS S/O.ULAHANNAN,THADATHIL HOUSE, KUNNACKAL KARA,VALAKOM VILLAGE-682316

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R2 BY ADV. SRI.M.V.RAJENDRAN NAIR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(C) No.2507/2018

JUDGMENT

Dated this the 10th day of February 2021

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The decree holder is aggrieved by the dismissal of

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E.P.No.22 of 2014 in O.S.No.119 of 1993 on the file of the Munsiff Court, Muvattupuzha. The petitioner obtained a decree for perpetual injunction as against the respondent's father who was the sole defendant in the suit, from obstructing the petitioner and his family members from using plaint B schedule road and from destroying the property or altering its lie and nature. A mandatory injunction was issued directing the sole defendant in the suit to remove the water pipe laid across plaint B schedule road and to shift the same to the side of the road. Execution was levied against the sole judgment debtor in the E.P. who during the continuance of the proceedings, passed away. The petitioner brought on record the respondent herein as the legal representative of the deceased judgment debtor as per order dated 20.7.2015 in E.A.No.26 of 2014.

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When the petitioner sought to execute the decree

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O.P.(C) No.2507/2018

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against the respondent, being the legal representative of the deceased original judgment debtor, he opposed execution contending that inasmuch as he is not a party to the decree, it is not executable against him. Upon this contention, an enquiry was conducted by the court below. As part of the enquiry, a commission report was also called for and the report was submitted also. The respondent also contended that execution is barred by limitation. The court below, after hearing the parties, took the view that the respondent not being a party to the decree cannot be compelled to obey the decree. In support of this view, the learned Munsiff relied on Section 2(10) of C.P.C. which defined the expression legal representative. The finding entered into by the court below is seriously challenged in this Original Petition.

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I heard the learned counsel for the petitioner and the respondent.

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The general principle of law is that a decree for injunction which operates in personam cannot be executed against any person other than a party to the decree. Section

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O.P.(C) No.2507/2018

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146 of C.P.C. however draws an exception to this general principle and permits decree to be executed against the legal representative also as a person claiming under the original party against whom decree has been passed. This legal position has been considered in Prabhakara Adiga v. Gowri and others (AIR 2017 SC 1061) and Chothy Theyyathan v. John Thomas and others (AIR 1997 Kerala 249) . Therefore, the view taken by the court below that a decree for injunction is not executable against the non party legal representative of the original defendant is not sustainable under law. Once it is held that the decree in question is executable against the legal representative, it necessarily follows that an opportunity must be given to him to obey the decree and consequence of non observance, if any, would follow only when there is willful disobedience of the same. I am not adverting to those aspects at this stage which are unwarranted also. It suffices to say that the decree in question is executable against the respondent being the legal representative of the original judgment debtor by virtue of Section 146 of the C.P.C.

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O.P.(C) No.2507/2018

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The learned counsel for the respondent submits that the execution proceedings are time barred. I am not expressing any comment on the submission made by the learned counsel. The plea as to limitation is certainly a matter to be duly considered by the court below after hearing parties in accordance with law.

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In the result, the Original Petition is allowed setting aside the impugned Exhibit P3 order dated 15.2.2018. The court below will restore the E.P. to file and proceed in execution of decree against the respondent who is the second judgment debtor and also consider the plea raised by him as to limitation. It goes without saying that entire procedure to be followed in the instant case is governed by Order 21 Rule 32 of C.P.C. It is directed that the execution proceedings shall be disposed of within a period of two months from the date of receipt of a certified copy of this judgment.

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Sd/-

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T.V.ANILKUMAR JUDGE

csl

O.P.(C) No.2507/2018

APPENDIX

PETITIONER'S DOCUMENTS:

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EXT.P1 : PHOTOCOPY OF THE JUDGMENT AND DECREE DATED 15TH JANUARY 1997 IN O.S.NO.119/93 OF MUNSIFF'S COURT, MUVATTUPUZHA.

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EXT.P2: PHOTOCOPY OF THE COMMISSION REPORT IN O.S.NO.119/93.

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EXT.P3: CERTIFIED COPY OF THE ORDER OF MUNSIFF'S COURT, MUVATTUPUZHA IN E.P.NO.22/14 DATED 15.2.2018.

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RESPONDENTS' DOCUMENTS:

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NIL

Kuriachen v. Ulahannan

Case brief

What is this about?

What did the court decide?

Kuriachen v. Ulahannan

Case brief

What is this about?

What did the court decide?

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