1. This appeal arises out of the proceedings in execution of the decree in suit No. 158 of 1910 of the Subordinate Judge of Ahmedabad. The facts involved in this case are somewhat peculiar. A certain house was partitioned between the plaintiff and his co-owner one Mayabhai. The superstructure was allotted to the plaintiff and the ground-floor was allotted to Mayabhai in the year 1857. The building was burnt down in 1883. In 1897 Mayabhai sold his interest in the property to one Vadilal, the father of the appellant. In 1910, the plaintiff proposed to reconstruct the building and was prevented from doing by Vadilal. He then filed suit No. 158 of 1910 and obtained a decree establishing his right to build and directing the judgment-debator to make a foundation on the eastern boundary of the land (sic) perpetually restraining him from building higher than nine (sic) over the surface line of the cellar any superstructure, and restraining the judgment-debtor from offering any obstruction by himself or others to the plaintiff's performance of any acts necessary for building the upper storeys.
2. In execution of this decree the plaintiff was obstructed by Vadilal. The matter came to the High Court in Second Appeal No. 368 of 1925. The High Court held that the execution so far as the mandatory injunction was concerned was beyond time, but gave a declaration that the plaintiff-decree-holder should make a foundation on the eastern limit at his own expense and the judgment-debtor should not obstruct this being done, and the remaining operative part of the decree could be enforced in execution. When the plaintiff again resumed his building, he was opposed by the two sons of Vadilal, Amratlal and Chinubhai, on the ground that on September 3 4, 1926, in a partition between them and their father Vadilal, the ground-floor in question had come to their share, and that not being parties to the decree they were not bound by the injunction contained therein.
3. The learned Subordinate Judge on July 8, 1927, by his order, Exhibit 62, directed the decree-holder's pleader to decide whether it was necessary to bring Amratlal and Chinubhai, the sons of Vadilal, on the record as parties to the execution proceedings, On July 14 the plaintiff' made an application that Amratlal and Ohinubhai, the sons of the judgment-debtor Vadilal and claiming under him, be made parties to the execution proceedings and the Commissioner be asked to proceed with execution of the decree.
4. The learned Subordinate Judge held, relying on the decisions in the cases of Dahyabhai v. Bapalal ILR (1901) 26 Bom. 140, 3 Bom. L. R. 564 and Jamsetji Manekji v. Hari Dayal ILR (1907) 32 Bom. 181. 10 Bom. L. R 18, that the injunction did not run with the land and that the decree was not binding on the judgment-debtor's sons, and the decree-holder could not be permitted to proceed against them in execution, and therefore, rejected the application to join them as parties to the execution under Order XXII, Rule 10.
5. On appeal, the learned Assistant Judge held that Order XXII, Rule 10, did not apply, and that the decree could not be enforced against the sons of Vadilal.
6. On second appeal, Murphy J. held that the effect of the decree was to give the plaintiff joint possession to be enjoyed in the manner specified in the decree and the case really was that of persons having a derivative title, or possibly an original one, as members of a joint family with their father, who objected to possession being given, and therefore, reversed the lower Court's order and directed the application for execution to be restored to the file and proceeded with according to law, and as the point involved was a difficult point of law, granted a certificate under the Letters Patent.
7. It is urged on behalf of the appellant that the injunction does not run with the land and reliance has been placed on the decision in the cases of Dahyabhai v, Bapalal, Jamsetji Manekji v. Hari Dayal, Bhaishanker Nanabhai v. Morarji Keshavji & Co. ILR (1911) 36 Bom. 283, 13 Bom. L. R. 950 and Chunilal Harilal v. Bai Mani ILR (1918) 42 Bom. 504, 20 Bom. L. R. 661, and therefore execution could not proceed against the sons of Vadilal who obtained the property on partition in the year 1926. Further, it is urged that the application to join the two sons of Vadilal under Order XXII, Rule 10, in execution proceedings was not justified, and that the second appeal would not He from the orders rejecting the application to join them as parties.
8. In Dahyabhai v. Bapalal, where the plaintiff obtained a decree restraining the defendant in the user of his land and applied for execution but the land was sold in execution of another decree against the defendant and the purchaser obtained possession, and the plaintiff applied that the purchaser should be made a party to the execution proceedings, it was held that no order for execution could be made on the ground that the original defendant had lost his interest in the land on account of the auction-sale, and execution could not proceed against the purchaser on the ground that the injunction did not run with the land. To the same effect is the decision in the case of Vithal v. Sakharam (1899) 1 Bom. L. R. 854. In Jamsetji Manekji v. Hari Dayal, where a person having obtained an injunction, subsequently sold his land, and the purchaser, being obstructed by the judgment-debtor, brought a suit against the judgment-debtor for an injunction similar to that obtained by his vendor, it was held that as the injunction did not run with the land, there was no bar to the plaintiff's suit. In Chunilal Harilal v. Bai Mani, where the plaintiff obtained a decree for injunction against two members of a joint Hindu family, and after the death of the judgment-debtors applied to execute the decree against the surviving co-parceners, it was hold that they were not bound by the decree and were not legal representatives within the meaning of Section 50 of the Civil Procedure Code.
9. It would, therefore, follow from the decided cases that the decree for injunction does not run with the land, and in the absence of any statutory provision, such a decree cannot be executed against the surviving members of the joint family or against the purchaser from the judgment-debtor.
10. I do not agree with the construction placed on the decree by Murphy J. that the decree gave the plaintiff joint possession to be enjoyed in the manner specified in the decree and that the executing Court should have put the plaintiff in joint possession of the land in question.
11. We are, however, informed by the advocate on behalf of the respondent-plaintiff that Vadilal has died and an application has been made to bring his sons on the record under Section 50 of the Civil Procedure Code. A Court of appeal can vary a decree under appeal, not only for error, but also on grounds which have come into existence since it was passed. See Rustomji v. Sheth Purshotamdas ILR (1901) 25 Bom, 606, 3 Bom. L. R. 227 and Sakharam Mahadev Dange v. Hari Krishna Dange ILR (1881) 6 Bom. 113. In Nuri Mian v. Ambica Singh ILR (1916) Cal. 47 it was held that ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution; but where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made.
12. On the death of Vadilal the decree can be executed against the sons under Section 50 of the Civil Procedure Code. In Sakarlal v. Bai Parvatibai ILR (1901) 28 Bom. 283, 4 Bom. L. R. 14, whore the plaintiff obtained a decree restraining the judgment-debtor from obstructing the access of light and air to her windows, and during the execution proceedings the judgment-debtor died and his son and heir was brought on the record, it was held that having regard to the provisions of Section 234 of the Civil Procedure Code of 1882, corresponding to Section 50 of the present Civil Procedure Code, the injunction ordered against the deceased defendant might be enforced against his son as his legal representative. In Krishnabai v. Savlaram (1926) 29 Bom. L. R. 60 it was held that a decree obtained against a judgment-debtor can on his death be enforced not only against his legal representatives, but also against the transferees from those representatives who take under an alienation pending the execution proceedings. The execution of the decree for injunction was enforceable against the legal representatives under Section 50, corresponding to Section 234 of the old Civil Procedure Code. In that case reliance was placed on Section 52 of the Transfer of Property Act, and it was held that the transferees from the heirs during the pendency of the execution proceedings could be bound by the result of the execution proceedings under Section 52, and that the word 'rights' in Section 52 would include the right of the plaintiff under an injunction decree to have the obstruction removed under the decree.
13. After the death of Vadilal, the sons of Vadilal can be brought on the record under Section 50 of the Civil Procedure Code, and according to the decision in Sakarlal v. Bai Parvatibai, the decree can be executed against all the sons of Vadilal including Amritlal and Chinubhai, who caused the obstruction during the pendency of the execution proceedings against Vadilal. On the authority of the decision in the case of Krishnabai v. Savlaram they can be proceeded against in execution on the ground that they are bound in virtue of Section 52 of the Transfer of Property Act by the result in the execution proceedings against Vadilal, If the transferees from the legal representatives of the original judgment-debtor joined in execution proceedings under Section 50 of the Civil Procedure Code can be proceeded against in execution on the ground that they are bound by the result of the execution proceedings under Section 52 of the Transfer of Property Act, the transferees from the original judgment-debtor during the pendency of execution proceedings against him can be held to be similarly bound and liable to be proceeded against in execution. In Ishwar Lingo v. Dattu Gopal ILR (1913) 37 Bom. 427 : 15 Bom. L. R. 366 it was held that a partition during the pendency of the suit fell within Section 52 of the Transfer of Property Act, for it was a transfer or, at any rate, a dealing with the property in suit, and that a complete right needs a person of incidence as well as a person of inherence, and no party during the conduct of a suit has any power, by dealing with the property, to change the person of incidence or inherence to the detriment of the other.
14. The principle that an injunction does not run with the land has been deviated from in the case of legal representatives on the death of the judgment-debtor on the ground of the express provision made by Section 50 of the Civil Procedure Code and in the case of transferees in virtue of Section 52 of the Transfer of Property Act. During the lifetime of Vadilal, the contingency provided by Section 50 of the Civil Procedure Code had not arisen as there was no devolution on death. But now on account of the death of Vadilal, execution can be ordered to be proceeded against the sons of Vadilal including Amratlal and Chinubbai under Section 50 of the Civil Procedure Code, and it is not necessary to resort to Section 52 of the Transfer of Property Act, The new provision in Order XXI, Rule 32, Clause (5), of the Civil Procedure Code, corresponding to Order XLII, Rule 30, of English Rules, is likely to facilitate execution of injunction decrees against the legal representatives or persons other than the original judgment-debtor.
15. We think that the proper order in the present appeal is to reverse the orders of the learned Subordinate Judge and the learned Assistant Judge, and confirm the decree of Murphy J. though on different grounds, and direct that the application for execution be proceeded with in accordance with law, and that Amratlal and Chinubhai, the sons of Vadilal, should pay the costs throughout.
16. This case raises a point of law. In Suit No, 158 of 1910 filed by the respondent against the father of the appellant there was a decree for an injunction restraining the defendant from doing certain things and ordering him to do certain things on August 17, 1912. There was no execution of that decree till 1923 when a darkhast was filed. The matter came up to the High Court, which partly confirmed the decree in S. A. 268 of 1925, decided on January 21, 1927. The original judgment-debtor Vadilal had four sons, of whom Amratlal is the present defendant. It is alleged he was living separate from his father and doing separate business though the parties were joint in estate. On September 24, 1926, a partition, Exhibit 60, took place between the father and the sons in which the property in dispute in the above-mentioned suit fell to the share of Amratlal. After the partition execution was proceeded with, but the appellant and his brother respondent No. 2 objected. The Court being of opinion that the execution should not proceed unless they were parties, the respondent on July 14, 1927, applied that the appellant and respondent No. 2, the two sons of 'Vadilal, should be made parties in execution proceedings, and an order passed against them in those proceedings. The first Court rejected the application, and that was confirmed on appeal. On second appeal to this Court Murphy J. reversed the lower Court's order, and directed that the application for execution should be restored to file and proceeded with according to law. The present is an appeal under the Letters Patent against that decision. He treated the effect of the decree as one to give the plaintiff joint possession to be enjoyed in the manner specified in the decree, and that the case was that of persons having a derivative title, or possibly an original one, as members of a joint family with their father, who are objecting to possession being given. The present appellant was not a party to the darkhast. It is contended that if the application is treated as one for adding parties, then no second appeal would lie, and it is also the law that an injunction does not run with the land, and therefore the injunction cannot be enforced against the transferees from the judgment-debtor. No order could be passed against the present opponents, who were not parties to the darkhast; and there was no appeal against the order refusing to add them as parties. It is further contended, on the authority of Dahyabhai v. Bapalal ILR (1901) 26 Bom. 140 : 3 Bom. L. R. 564, Jamsetji Manekji v. Hari Dayal ILR (1907) 32 Bom. 181 : 10 Bom. L. R. 18, and Bhaishankar Nanabhai v. Morarji Keshavji & Co. ILR (1911) 36 Bom. 283 : 13 Bom. L. R. 950, that an injunction does not run with the land is shown by Jamsetji Manekji v. Hari Dayal, and so cannot be enforced against the sons. It appears, however, that the father, the original judgment-debtor, against whom the injunction was obtained, is dead. And on the authority of Sakarlal v, Bai Parvatibai ILR (1901) 26 Bom. 283 : 4 Bom. L. R. 14, which is also a ease of an injunction, it was hold that having regard to the provisions of Section 234 of the Civil Procedure Code, 1882, the injunction ordered against the deceased defendant might be enforced against his son as his legal representative, and the case of Dahyabhai v. Bapalal was distinguished. Dahyabhai v. Bapalal was a case of an application to enforce an injunction against a purchaser of land, and to such a case there is no statutory provision. It is otherwise, however, where there is devolution on death, for which an express provision is made by Section 234 of the Civil Procedure Code, which is now Section 50. There is, moreover, another decision in Krishnabai v. Savlaram (1926) 29 Bom. L. R. 60, in which it was held that the decree passed against the judgment-debtor can on his death be enforced not only against his legal representatives, but also against the transferee from those representatives who take under the alienation pending the execution proceedings. That case was expressly decided on Section 52 of the Transfer of Property Act. That also was a case in which the relief was granted by way of injunction restraining the defendant from causing any such act as would affect the plaintiff's roof, gable wall, etc., and the plaintiff's ownership and easement right in connection therewith, The injunction in the present case is based on the somewhat peculiar circumstance that the ground-floor of the house is dispute belonged to the deceased Vadilal, and the first floor belonged to the predecessor-in-title of the plaintiff. It is not at present in existence, but it is sought to rebuild it, and the sons of Vadilal are obstructing. On the authority of these two cases, I think that the injunction can be enforced against the sons of Vadilal after they are brought on the record.