The third contention that the first Judgment Debtor having died and his LRs having not been brought on record, the injunctive decree is not executable at all qua the other judgment debtors is too farfetched an argument since it is a judgment in personam, and can be executed as against rest of the judgment debtors, no rule of law being shown to the effect that the death of one of the judgment debtors results into the dissolution of the decree qua the other judgment debtors.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Writ Petition No. 46572 of 2016 (GM-CPC)
Decided On: 28.06.2019
Hanumanthaiah Vs. G.S. Arun Kumar and Ors.
Hon'ble Judges/Coram:
Dixit Krishna Shripad, J.
Citation: MANU/KA/4382/2019
1. Petitioners being the Judgment Debtors in first respondents' Execution No. 18/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 29.06.2016 whereby, petitioners are ordered to be committed to civil prison for a period of one month for violating the injunctive decree dated 30.11.1993 rendered in O.S. No. 150/1986. After service of notice, respondents having entered appearance through their counsel resist the writ petition.
2. Learned counsel for the petitioners seeks to invalidate the impugned order on the following four grounds:
a) the execution of decree is levied by one of the decree holders, others having not joined him and therefore the same is impermissible;
b) the first Judgment Debtor having died and his LRs having not been brought on record, the decree cannot be put in execution;
c) the injunctive decree if permitted to be executed amounts to treating it as a decree for possession when it is not one such and therefore execution is incompetent; and
d) the petitioners being the members of the depressed classes have been in the possession of the subject property and therefore an injunctive, decree cannot be executed against them.
So arguing, learned counsel seeks allowing of the writ petition.
3. Learned counsel for the respondent - Decree holders, per contra submits that the decree having been entered by the trial Court below, the challenge was laid to the same in R.A. No. 350/2004 and the said challenge came to be negatived by the appellate Court vide order dated 02.12.2005; the contention urged by the petitioners having been substantially urged in the RA and rejected, the same cannot be re-urged in the execution petition; re-urgement of contra contentions amounts to abuse of the process of the Court; having so contended, the learned counsel seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the writ petition papers.
5. The suit of the respondents in O.S. No. 150/1986 came to be decreed after a full-fledged trial; the first issue out of the seven in all framed related to the respondent - decree holders being in lawful possession and enjoyment of the suit property and the same has been answered in the affirmative by the Court below holding that the defendant/decree holders have been in the possession of the subject property. The challenge to this decree in petitioners' R.A. No. 350/2004 has been negatived by the learned First Additional District judge, Tumakuru, vide order dated 02.12.2005 and cost is also imposed. In view of this position, it is not open to the petitioners now to argue that it is they who are in the possession of the subject property. So, the first contention stands rejected.
6. The second contention that the execution is levied only by one of the decree holders and thus the same being incompetent, the impugned order passed therein is a nullity, is too difficult to accept inasmuch as, ordinarily an injunctive decree being in personam can be put in execution by one of the decree holders. It is not a thumb rule that, in all cases, all the decree holders should join to levy execution vide ELBROS TEXTILES LTD., vs. SURENDRA KUMAR HAR KISHORE JAIN, MANU/MH/0059/1993 : AIR 1993 BOMBAY 381, 383; SARVARI BEGUM vs. NAZIR AHMED, MANU/WB/0083/2003 : AIR 2003 CALCUTTA 230.
7. The third contention that the first Judgment Debtor having died and his LRs having not been brought on record, the injunctive decree is not executable at all qua the other judgment debtors is too farfetched an argument since it is a judgment in personam, and can be executed as against rest of the judgment debtors, no rule of law being shown to the effect that the death of one of the judgment debtors results into the dissolution of the decree qua the other judgment debtors.
8. This case reminds me of what the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE'S INDIAN APPEALS MANU/PR/0029/1872 : (1871-72), VOL. 14, PAGE 605 : 17 W.R. 459; it reads:
"These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree....''
In the above circumstances, this writ petition fails; the petitioners are liable to pay a cost of Rs. 10,000/- to the respondent-decree holders. The Court below shall take necessary action for recovering the said amount in accordance with law and paying the same to the respondent-decree holders at the earliest and to report compliance to the Registrar General of this Court.
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