1. The point raised in this case is one of law, and one of some difficulty if it were not that it had been very recently dealt with by a bench of which I was a member. The facts are that the parties are neighbours. In 1916 the present appellants brought a suit against one Lallubhai and his son Kikabhai with respect to certain easements. The suit was dismissed. In 1922 Lallubhai filed the present suit against the defendants claiming certain rights in respect of the same house. His son Kikabhai was not a party to the suit. The suit was compromised, and under the compromise decree each party was bound to perform certain acts and to make certain alterations in pursuance of the compromise. Lallubhai died, and the present appellants sought to execute the decree against his son Kikabhai. The remedy sought is not a personal one, but refers only to certain alterations to be made in the house. Kikabhai objected that he was not the legal representative of his father so far as the property in dispute was concerned; that property was their ancestral property, and that he not having been brought on the record, the decree is not capable of execution against him. The first Court, the Joint Subordinate Judge of Nadiad, held that the suit not being filed by Lallubhai in his representative capacity could not bind his heirs, and holding that the case was exactly on all fours with that of Chunilal Harilal v. Bai Mani ILR (1918) 42 Bom. 504, 20 Bom. L.R. 660, held that the opponent Kikabhai did not represent his father, and that the application should be dismissed. On appeal this was upheld by the lower appellate Court, which held that the suit was not brought in a representative capacity, and the father had no right to create rights in appellants by a consent decree, and that an injunction suit is on a different footing from a money or mortgage suit. There can be no presumption in such a suit against the son, and before he can be called upon to do or omit to do certain acts which the father undertook to do or omit, the Court must be fully satisfied that though he is not bound eo nomine, he is by implication on the theory of general representation of the family by the father as manager; that the property was the ancestral property of Kikabhai and not his self-acquisition; the appellants knew of it, and therefore made him a party to the 1916 suit, and should also have applied for his joinder if they wanted to bind him by the consent decree, also that the decree cannot be executed against him as he is in no sense a legal representative of his deceased father. He, therefore, confirmed the order of dismissal of the trial Court.
2. It is argued that the respondent Kikabhai is not, under Section 2, Clause (11), of the Code of Civil Procedure, the legal representative of his deceased father, It is argued that a coparcener loaves no estate in the coparcenary property at his death so that the surviving coparcener is not his legal representative with reference to that property. In Chunilal v. Bai Hani the plaintiff obtained a decree for injunction against two defendants who were members of a joint Hindu family with three other coparceners. After the death of both the defendants the plaintiff sought to execute the decree against the three surviving coparceners. It was held that the surviving coparceners were not bound by the decree, for on no construction of the term 'legal representative' could members of a joint Hindu family be brought within its definition as contained in Section 2 (11) of the Civil Procedure Code. It must be observed that in that case these coparceners who were not brought on the record were the sons of one defendant. It was laid down in that case that Section 58 was specially intended to enforce one recognised rule that members of a joint Hindu family may not escape the payment out of joint family property of any debt incurred and decreed against their father before his death provided that such debt was not tainted by immorality. The learned advocate for the appellants in this case has relied on Section 50 of the Civil Procedure Code, and it is contended on behalf of the respondent that that section and Section 53 will refer only to decrees for the payment of money out of the property of the deceased. This, however, is not so. It has been held by this Court in Sakarlal v. Bai Parvatibai ILR (1901) 20 Bom. 283, 4 Bom. L.R. 14 that an injunction obtained against the defendant restraining him from obstructing the plaintiff s ancient lights may on the death of the defendant be enforced against his eon as his legal representative by procedure under Order XXI, Rule 32. A very similar case came before this Court recently, Amritlal v. Kantilal (1930) 33 Bom. L.R. 266, in which the facts are very much the same as in the present case. The plaintiff and the defendant in that case both owned shares in a house, and the plaintiff obtained a decree against the defendant entitling him to re-build the house which had been burnt down, without obstruction from the defendant, The plaintiff was obstructed when he was building, and pending the proceedings the defendant died. An application was made to bring his sons on the record under Section 50 of the Civil Procedure Code. It was held that though the decree for injunction did not run with the land and in the absence of any statutory provision the decree could not be executed against the surviving members of the joint family or against the purchaser from the judgment-debtor, still after the death of the defendant the sons could be brought on the record under Section 50 of the Civil Procedure Code, and the decree could be executed against his sons including those who caused the obstruction during the pendency of the execution proceedings against him, and for that portion of the judgment, Sakarlal v, Bai Parvatibai and Krishnabai v. Savlaram (1926) 29 Bom. L.R. 60 were followed. In the course of the arguments in that case a reference was made to Chunilal v. Bai Mani, but the decision of the case was as already mentioned. In a recent case, Ganesh v. Narayan (1929) 33 Bom. L.R. 1144 the case of Chunilal v. Bai Mani was distinguished by Madgavkar J, on the ground that if the plaintiff' had impleaded some members of the joint family and not others, then there would have been reason to hold that the deceased had been impleaded in his individual capacity and not as the manager of a joint Hindu family as apparently in the case of Chunilal v. Bai Mani.
3. A consideration of these cases will show that where a decree for an injunction has been obtained against the father, the son not being joined as a party, and the father dies during the pendency of the execution proceedings, the decree can be enforced under Section 50 against the son as his legal representative by proceeding under Order XXI, Rule 82. And the authority for holding that is Sakarlal v. Bai Parvatibai, Ganesh v. Narayan, and Amritlal v. Kantilal. The application in execution appears to be in accordance with Order XXI, Rule 32. That, however, is another matter. The view of the lower Court that it is not possible to enforce the decree against the opponent who claims the property in his own right as a member of the joint Hindu family and not as representing his father is not in accordance with the principles laid down in the cases above referred to.
4. The result is that the appeal must be allowed, the order of the lower Court set aside, and the application for execution directed to be proceeded with in accordance with law. The respondent to pay the costs of the appeal and of the Courts below.