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).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 855 of 2016 (B)

Decided On: 06.01.2017

E.N. Chandran Vs. Valsan Matathil

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Basic principle for grant of mandatory interim relief

Grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden vs. Coomi Sorab Warden and Others[2] has come to be firmly embedded in our jurisprudence. Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully remembered in this regard: “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

Supreme Court of India

Mohd Mehtab Khan & Ors. vs Khushnuma Ibrahim Khan
 & Ors. on 24 January, 2013

Bench: P. Sathasivam, Ranjan Gogoi

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