Sunday, 28 January 2018

Whether assignee is bound by permanent prohibitory injunction decree passed against assignor?

Now a question may arise as to whether the assignee is bound by a permanent prohibitory injunction decree passed against the assignor? This question was answered by a Division Bench of this Court in Rajappan v. Sankaran Sudhakaran (MANU/KE/0067/1997 : 1997 (1) KLT 748). The principle reads as follows:

"In the face of S. 146 of the Code, the judgment debtors cannot contend that they are not bound to obey the decree for injunction granted against their predecessor-in-interest restraining him from tampering with the boundary of the property or from entering the property of the decree holder or from committing any acts of waste therein. To permit such a plea would be to ignore the principle of public policy embodied in Ss. 11 and 146 of the Code of Civil Procedure on the one hand and S. 52 of the Transfer of Property Act on the other. The contention on behalf of the legal representatives of the judgment debtor is that the decree holder is bound to file another suit against them for the identical relief. In such a suit, can the legal representatives of the judgment debtor put forward a claim which has already been concluded by the decree against their predecessor-in-interest? Can they say that the boundary had not been properly fixed in the earlier litigation and they are entitled to show that the boundary between the properties lay elsewhere? According to us, they cannot. They would be barred by res-judicata from so doing since res-judicata bars not only the parties to the suit but also persons who claim under the parties to the suit and are litigating under the same title. There is no justification for whittling down the scope of S. 146 of the Code and to insist that a fresh suit must be filed anytime a stranger to the decree succeeds to the property of the judgment debtor in the prior litigation who has suffered a decree."
A learned Single Judge, following the above decision, held in Jihas v. Salim (MANU/KE/0657/2014 : 2014 (2) KLT 1004) that a decree granting injunction to do or not to do a particular act or thing in the land would run with the land notwithstanding the change of ownership. So, this aspect also goes against the plaintiff.

33. Learned author William Williamson Kerr in his treatise on the Law and Practice of Injunctions (sixth edition) says that perpetual injunctions are such as form part of the decree made at the hearing upon merits. The perpetual injunction is in effect a decree and concludes a right. The following quotation is relevant for our purpose:

"The jurisdiction to grant a perpetual injunction is founded on the equity of relieving a party from the necessity of bringing action after action at law for every violation of a common law right, and of finally quieting the right, after a case has received such full decision as entitles a person to be protected against further trials of the right."

34. From the above discussion, it is very much clear that the plaintiff cannot legally contend that he is in possession of the property and claim a permanent prohibitory injunction decree, either as a substantive relief or as a consequential relief, in view of the attainment of finality of the judgment and decree in O.S. No. 157 of 2003 and the counter claim therein. Hence these questions are decided against the plaintiff (respondent).


RSA No. 855 of 2016 (B)

Decided On: 06.01.2017

E.N. Chandran Vs. Valsan Matathil

Hon'ble Judges/Coram:
A. Hariprasad, J.
Read full judgment here: Click here

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