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Abdul Kardar Haji Hiroli Vs. Mrs. Judah Jacob Cohen - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1459 of 1964
Judge
Reported in(1967)69BOMLR749; 1967MhLJ985
AppellantAbdul Kardar Haji Hiroli
RespondentMrs. Judah Jacob Cohen
DispositionApplication dismissed
Excerpt:
.....to apply the ratio of the authorities which he considered in prior part of his judgment. it is difficult to appreciate as to how the learned judge failed to notice the well established principle that excepting the cases where judgments in rem are passed third parties and strangers cannot be bound by judgments and decrees passed in particular suits. these are exceptional cases and in these cases the phrase 'representative' contained in section 47 is held to be applicable. gujarathi is not well founded. parties to a consent decree may choose to use such phrases as they like in a decree, but such decree cannot enact any new law of execution......where judgments in rem are passed third parties and strangers cannot be bound by judgments and decrees passed in particular suits. that is directly provided in section 41 of the evidence act. that is also the effect of the relevant provisions in the code of civil procedure and particularly those in sections 47 and 50 thereof. now, it is true that having regard to what is provided in section 52 of the transfer of property act purchasers of properties pendente lite are bound by the decrees passed in litigations pending between third parties in respect of the properties under purchase. it is also true that having regard to the provisions in the code of civil procedure relating to the effect of attachments, transferees of properties attached are bound by the provision in the decree in.....
Judgment:

K.K. Desai, J.

1. This second appeal arises out of the appellate order dated November 13, 1964, passed by the Assistant Judge, Poona, in Civil Appeal No. 62 of 1964, whereby the learned Judge confirmed the trial Court's order granting the reliefs claimed by the respondents in Darkhast Application No. 1057 of 1963 and dismissed the appellants' appeal with costs.

2. The short facts which need to be noticed arc as follows:

In 1932 one S.M. Gujarathi was the owner of immovable property bearing No. 356 situated at Vallabhbhai Patel Road, Poona. One J.J. Cohen was the owner of the immovable property bearing No. 357 situated on the southern side of the property of S.M. Gujarathi. There were disputes between these two owners in connection with easements of light and air through the windows in their adjacent buildings. S.M. Gujarathi then filed Suit No. 116 of 1932 for certain injunctions and for enforcing rights of easements. That suit was ultimately carried to this Court in Second Appeal No. 198 of 1935. At the ultimate hearing in that second appeal on September 9, 1938, by consent and compromise between the parties, a decree was passed. The decree declares mutual rights of these two adjacent owners in connection with their easements of light and air through the windows in their buildings. It also declares right in favour of S.M. Gujarathi to reconstruct a building on his land in accordance with a sketch annexed to and also other provisions in the decree. In connection with the mutual covenants restraining each other given in the prior part of the decree, by Clause 6, the following provision was made:

The expression 'the plaintiff and the defendant herein' shall include their heirs, legal representatives, executors, administrators and assigns and in the matter of injunction the said words shall also include their servants and the members of the family.

3. In 1963, the respondents, being the original applicants, filed Darkhast Application No. 1057 of 1963 against the appellants for enforcing the restrictive covenants by way of injunction and otherwise given in the consent decree by S.M. Gujarathi in favour of J.J. Cohen. The applicants are heirs and legal representatives of J.J. Cohen. The appellants are the transferees and purchasers of the property No. 856 from S.M. Gujarathi, the previous owner. The main contention on behalf of the appellants in the two Courts below was that there was no provision in the Code of Civil Procedure or otherwise in law which entitled the applicants to have the above consent decree executed against the appellants as purchasers of the above1 property from S.M. Gujarathi. Both the Courts below have negatived that contention and passed orders as claimed in the darkhast application for reliefs claimed in execution of the above decree against the appellants.

4. Mr. Jape for the appellants has once again repeated in this Court the above contention on behalf of the appellants. His contention is that the appellants do not admit that the decree creates any covenants running with the land against the purchasers. Assuming, however, that the decree does create such covenants, there is no provision in the Code of Civil Procedure or otherwise in law which entitles the applicants-decree-holders to execute the above consent decree against the appellants who were never parties to the suit in which the decree was passed. Mr. Jape has in this connection referred to Sections 47 and 50 and the scheme of Order XXI of the Code of Civil Procedure. He has submitted that under Section 50 specific provision is made whereunder, after a judgment debtor dies before the decree is fully satisfied, the holder of the decree is authorised to apply to the Court to execute the decree against legal representatives of the deceased judgment-debtor. He has emphasised that under Sub-section (2) provision is made that even against a legal representative decree can be executed to the extent only to which the property of the judgment-debtor has come to his hands. Under Section 47, questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree are determined by the Court executing the decree and not by a .separate suit. Mr. Jape has contended that the phrase 'representative' in this section in effect is to include only legal representatives as denned in Section 2(11). of the Code. His contention is that 'legal representative' is a person who in law represents the estate of a deceased person and otherwise an intermeddler with such estate and cannot include third parties. Mr. Dalvi for the applicant has on the contrary emphasised that the phrase 'representatives' in Section 47 includes not only those who are denned as legal representatives in Section 2 of the Code but also all successors in interest of any of the parties to the suit including purchasers and assigns of such parties. In this connection, Mr. Dalvi has emphasised that S.M. Gujarathi, from whom the appellants have purchased the property, agreed in Clause 6 of the decree that the expression 'the plaintiff' in the decree would include his heirs, legal representatives, executors, administrators and assigns and also his servants and members of his family. Relying upon the provisions in Clause 6 of the decree, Mr. Dalvi contends that in this case in any event the appellants who are purchasers from S.M. Gujarathi should be held to be representatives within the meaning of Section 47 and the decree should be held to be executable as such against the appellants.

5. Now, in connection with these rival contentions of the parties, it first requires to be stated that the question has been settled by a number of authorities and does not arise now for a fresh decision. The learned Assistant Judge has referred to these authorities. In the case of Vithal v. Sakharam (1899) 1 Bom. L.R. 854 it was held that the injunction granted was directed as against the parties mentioned in the decree and or the particular persons and would not run with the land. The injunction granted by the decree, therefore, was not executable against a transferee-purchaser of the judgment-debtor. Similar was the decision in the cases of Dahyabhai v. Bapala 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. As is mentioned by the learned Judge, the same question was considered in the cases of Amritlal v. Kantfilal (1930) 33 Bom. L.R. 266. A.I.R. [1931] Bom. 280 and Ganesh v. Narayan : (1931)33BOMLR1144 . Having regard to these authorities, the learned Judge first held that an injunction was a personal remedy and did not run with the land. A decree for injunction could be executed only against those persons against whom the injunction was issued and could not be executed against other persons in the absence of statutory provisions. After making- the above observations, the learned Judge referred to the provisions in Sections 40 and 52 of the Transfer of Property Act and arguments advanced on behalf of both sides on the basis of those sections. He first observed that.the appellants have not purchased the property during the pendency of the execution proceedings; they purchased the property before the execution application and after the consent decree.

Subsequently he observed:

Taking into consideration the peculiar nature of the injunction decree, there appears some substance in the contention, of the appellants that Section 52 would not be of much help. But it is to be noted that under the terms of the consent decree (para 6) the assigns are included in the expression 'plaintiff and defendant'. It will be thus seen that the parties not only bound themselves but the assigns are also bound by the terms of the decree. I have referred above that the appellants who have purchased the properties are bound by the covenants embodied in the decree. I, therefore, feel having regard to the terms of the consent decree above-referred, that the execution application is maintainable.

This is the sole ground on which the learned Judge held that the restrictive covenants in the decree by way of injunction were enforceable in execution proceedings against the appellants though, they were transferees and purchasers of the above property. I have no doubt that in arriving1 at the above conclusion the learned Judge failed to apply the ratio of the authorities which he considered in prior part of his judgment. It is difficult to appreciate as to how the learned Judge failed to notice the well established principle that excepting the cases where judgments in rem are passed third parties and strangers cannot be bound by judgments and decrees passed in particular suits. That is directly provided in Section 41 of the Evidence Act. That is also the effect of the relevant provisions in the Code of Civil Procedure and particularly those in Sections 47 and 50 thereof. Now, it is true that having regard to what is provided in Section 52 of the Transfer of Property Act purchasers of properties pendente lite are bound by the decrees passed in litigations pending between third parties in respect of the properties under purchase. It is also true that having regard to the provisions in the Code of Civil Procedure relating to the effect of attachments, transferees of properties attached are bound by the provision in the decree in suits between third parties. These are exceptional cases and in these cases the phrase 'representative' contained in Section 47 is held to be applicable. It is, however, not true that where decrees containing covenants running with the land are passed by consent and/or even in invitum the same can be directly executable against third parties and/or purchasers. Contentions of those kinds have already been negatived in the authorities which I have noticed above. Mr. Dalvi's contention that because S.M. Gujarathi agreed to include the phrase 'assigns' in Clause 6 of the decree the same became executable against the purchasers from S.M. Gujarathi is not well founded. Parties to a consent decree may choose to use such phrases as they like in a decree, but such decree cannot enact any new law of execution. The law of execution must be found in the Code of Civil Procedure. There is no provision in that Code empowering execution of decrees as such against purchasers of properties. That is so even in cases where decrees contain and provide for covenants which run with the land.

6. Mr. Dalvi applied that since I was against the applicants on the question of procedure, their application should now be allowed to be converted into a suit. In that connection, he has relied upon Sub-section (2) of Section 47. It is true that ordinarily the trial Court executing a decree may give permission to convert an application for execution into a suit. This case has now been tried by the two Courts below and has been completely argued in this Court. I do not think that this is a matter in which I would permit such conversion at this stage.

7. Under the circumstances, the orders passed by the two Courts below permitting Darkhast Application No. 1057 of 1963 to proceed are set aside. The Darkhast Application No. 1057 of 1963 is dismissed. The applicants-respondents will pay costs throughout.


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