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Krishnabai Pandurang Salagare Vs. Savlaram Gangaram Kumtekar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 438 of 1925
Judge
Reported inAIR1927Bom98; (1927)29BOMLR60
AppellantKrishnabai Pandurang Salagare
RespondentSavlaram Gangaram Kumtekar
DispositionAppeal allowed
Excerpt:
civil procedure, code. (act v of 1908), section 50-decree-execution against legal representatives of judgment-debtor-transfer by representatives of pending execution-execution against transferee-transfer of property act [iv of 1882), section 53.;a decree passed against a judgment-debtor can on his death be enforced not only against his legal representatives, but also against the transferee from those representatives who takes under an alienation pending the execution proceedings. - .....that this transfer was during the pendency of the execution proceedings. under section 52 of the transfer of property act it is provided that:-during the active prosecution, in any court having authority in british india,... of a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.9. here the transfer was not under the authority of the court, and it was made during the pendency of a contentious proceeding in execution of this decree. it seems to.....
Judgment:

Shah, J.

1. The few facts which have given rise to this appeal are these. The plaintiff and the defendant Pandurang Balaji Salagare were neighbours. The plaintiff sued the defendant claiming various reliefs in connection with certain acts of the defendant which were in the nature of encroachments upon his properties. Out of the seven reliefs claimed three reliefs D, E and G were granted on February 25, 1918, and injunctions as prayed for in those clauses were issued against the defendant. After the decree the defendant was said to have made certain encroachments in respect of which the present darkhast was filed in 1923. Before the darkhast was filed the defendant had died; and the darkhast proceeded against the two widows of the deceased judgment-debtor in respect of certain encroachments. The Court dealing with the darkhast disposed of two out of these matters with which we are not concerned. Those two matters related to the removal of the plaster and the encroachment of the defendant's roof mentioned in the decree. Both those reliefs were granted. But with regard to the other reliefs the learned Joint Subordinate Judge observed as follows:-' The plaintiff besides asked for some other reliefs not awarded by the decree.'

2. Treating those other reliefs as not covered by the decree the learned Judge disposed of the darkhast.

3. The plaintiff appealed to the District Court; and during the pendency of the appeal the legal representatives of the judgment-debtor transferred their property to Kondo Ganesh Deo. The two reliefs, with reference to which the appeal was preferred, were that the first floor gallery of the plaintiff had been blocked up at one end as a result of the defendant's wall, and the second complaint was that the defendant's wall projected over plaintiff's property to the extent of two inches. The learned Assistant Judge, who heard the appeal, was of opinion that both these reliefs were sufficiently covered by the prayer G under the decree, and, accordingly, referred the matter back to the Court of first instance in order that a Commissioner might be appointed and the dispute with reference to those obstructions decided.

4. From this order in execution, the present second appeal is preferred by the two widows, who are the legal representatives of the deceased judgment-debtor and their transferee Kondo Ganesh Deo. In support of the appeal it is urged these reliefs are not covered by Clause G of the prayer clause, and that as they fall outside the scope of the suit, the plaintiff should file a separate suit to enforce his rights as regards the alleged encroachment and obstruction. Secondly, it is urged that in any case no execution could be allowed, as the relief granted by way of injunction is purely personal, and the original judgment-debtor having died the injunction had ceased to be operative.

5. As regards the first point, the relief granted is in these terms :-

A permanent injunction may be issued to the defendant restraining him from causing any such act as would affect the plaintiff's said roof, gable wall &c.;, and the plaintiff's ownership and easement right in connection therewith.

6. We think that the wording of this clause is wide enough to cover the relief which the plaintiff seeks in this darkhast for the removal the obstruction to his balcony and the other encroachment over his property. Thus, if the darkhast is otherwise competent, there is no objection to the plaintiff seeking execution in respect of these two reliefs against representatives of the deceased, judgment-debtor. When the suit was filed the defendant was proceeding with the building : and it is not unlikely that the expression 'et cetera' was used to cover such obstruction and encroachment as the plaintiff complains of even though they are not specifically referred to in the decree.

7. As regards the second point, it may bo mentioned that it was not raised in the lower appellate Court. But it is a question of law, and Diwan Bahadur Rao has relied upon the decision in Dahyabhai v. Bapalal I.L.R. (1901) 26 Bom. 140, s.c. 3 Bom. L.R. 564 in support of his contention. But this case is distinguished in Sakarlal v, Bai Parvatibai. I.L.R. (1901) 26 Bom. 283, 4 Bom. L.R. 14 It was held in the latter case that in virtue of Section 234 of the Code of 1882 execution could be taken out against the legal representatives under the statutory right which was given by that section to the decreeholder to proceed against the legal representatives. It is clear, therefore, that, so far as the darkhast was originally filed against the legal representatives, it was in order.

8. But a further complication has arisen in virtue of the transfer to the present respondent No. 3 by the widows of the original defendant. It is urged that though now under Section 50 corresponding to the old Section 234 of the Civil Procedure Code, the darkhast may be competent against the legal representatives, it is not so against the transferee. But it is clear that this transfer was during the pendency of the execution proceedings. Under Section 52 of the Transfer of Property Act it is provided that:-

During the active prosecution, in any Court having authority in British India,... of a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

9. Here the transfer was not under the authority of the Court, and it was made during the pendency of a contentious proceeding in execution of this decree. It seems to metha this transfer cannot be allowed to affect the rights of the present plaintiff. He is entitled to such order as he would have obtained under the darkhast if there had been no transfer. If the mere fact of the transfer were accepted as a ground for disallowing his application for execution, it would mean that the transfer is allowed to affect the rights of the plaintiff, which would bo contrary to the provisions of Section 52 of the Transfer of Property Act.

10. It has been urged on behalf of the appellants that the word 'rights' in Section 52 has reference to the substantive rights and not to a matter of procedure, and that in the present case the right of the plaintiff to be affected is not a substantial right to the property, but to the particular procedure. No authority has been cited in support of this restricted meaning of the word 'rights' as used in Section 52 ; and it seems to me that it is not merely a matter of procedure. It does affect the right of the plaintiff to get the obstruction removed under the decree. He had got a certain right under the decree, which ho would be entitled to enforce in execution of the decree. And the argument in substance comes to this that in virtue of that transfer such a right may be lost without contravening the provisions of Section 52. I am not prepared to accept this contention of the plaintiff. It may be mentioned that between these very parties in another suit under similar circumstances this very question was raised ; and in Krishnabai v. Savlaram (1926) Second Appeal No. 420 of 1925, decided by Macleod C.J. and Crump J., on March 23, 1926, (Unrep.) it was held on March 23 last that execution could proceed against the legal representatives of the deceased judgment-debtor. Though there is no reference to the position of the transferee with reference to Section 52 of the Transfer of Property Act in the judgment, it seems that the conclusion reached there is the same. It supports our conclusion in this case.

11. I, therefore, dismiss the appeal with costs. The cross-objections are also dismissed with costs.

12. I desire to add that in execution, if the question arises whether the injunction granted against the original judgment-debtor can be enforced personally against the legal representatives or against the transferee, it will be for the Court to consider whether a personal relief by way of injunction could be enforced against any of them. But it is possible that in execution the alleged encroachment and obstruction may be removed without that question arising at all.

Fawcett, J.

13. I agree. I think that Section 52 of the Transfer of Property Act is wide enough to cover the present case. As is observed in Nathaji Anandrav v. Nana (1907) 9 Bom. L.R. 1978, the doctrine of Us pendens is not based on the equitable doctrine of notice, but on the ground that it is necessary to the administration of justice that the decision of a Court in a suit should be binding not only on the litigant parties but on those who derive title from them pendente lite, whether with notice of the suit or not. I think that section has been drawn with intent to cover that principle, which had already been adopted in many English cases.


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