H.G. Mishra, J.
1. This is a Second Appeal by the plaintiffs against the judgmentand decree of affirmance dated 20-9-79 whereby the judgment and decree passed by the trial Court on 26-4-77 dismissing their suit on the ground that it is barred by the doctrine of res judicata was afirmed.
2. Facts material for decision of this appeal are as under:
Manila Ummedibai, plaintiff No. 1, is the wife of Daulatsingh and Roopsingh, plaintiff No. 2 and Udhamsingh (minor), plaintiff No. 3, who is represented by his Mother acting as next friend are sons of Daulatsingh and they are members of joint Hindu family. Bhikamsingh, defendant, had brought a civil suit against Daulatsingh in the Court of Civil Judge Class II, Vidisha, for issuance of mandatory injunction directing removal of encroachment made by the defendant by constructing a platform (Chabutara) and for issuance of a permanent injunction restaining Daulatsingh from preventing flowing of water of daily use discharged from the house of the defendant Daulatsingh from the mori newly constructed by him. This suit was registered as C. B. No. 139/72 and was partly dismissed on6-8-74; so far as removal of encroachment if concerned. It was decreed in respect of permanent injunction restraining Daulatsingh from discharging water from themori newly constructed. This decree has undisputedly attained finality. Certified copies of the plaint, written statement, judgment and decree dated 6-8-74 passed in the aforesaid suit are on record.
2A. Thereafter, the present suit has been brought by Manila Ummedibai, wife of Daulatsingh, and her two sons Roopsingh and Udhamsingh (minor), who is represented by his mother acting as next friend, for cancellation of the aforesaid decree in respect of closure of the mori in question.
3. Bhikamsingh, defendant No. 1 resisted the claim of the plaintiff inter aliaon the ground that the suit is barred by the doctrine of res judicata in view of the fact that the decree in the earlier suit is against Daulatsingh, who is Karta of the joint Hindu family, of which the plaintiffs are members. This objection found favour with the trial Court. Consequently, the suit is dismissed as barred by res judicata. Aggrieved by this judgment and decree, the plaintiffs had preferred an appeal which has been dismissed vide the impugned judgment and decree. Hence, this second appeal.
4. In this second appeal, Shri R. A Roman, learned counsel for the plaintiff-appellants, contended that the decree in the earlier suit was a decree for permanent injunction only. Accordingly, the judgment rendered therein is only judgment in personam and that the judgment in the earlier suit is not relevant under Sections 40, 41 or 42 of the Indian Evidence Act, 1872, it cannot operate as res judicata.Shri V. K. Sapre, learned counsel for the defendant-respondents argued in support of the impugned judgment.
5. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be allowed and the case deserves to be sent back to the trial Court for trial and decision of the suit on merits in accordance with law and the observation made hereinafter.
6. It is a well known maxim that 'Equity acts in personam' -- that is, it regards its decree as command or direction positive--in the case of specific performance or negative in the case of injunction addressed to the defendant personally, rather than as decision directly affecting the subject-matter of dispute. (See Woodroffe's Injunctions (1964), Section 19 at p. 48).
7. The effect of the maxim that 'equity acts in personam and not in rem' has been stated by Dr. Ponioroy in these words:--
'Some writers have argued that the equitable jurisdiction is to be regarded as wholly remedial and that Equity itself does not create any rights of property or other primary rights, because the Court of Chancery as they say, only acts in personam against the parties and never in rem upon the subject-matter of a judicial controversy. It is said that a decree of the Court never operates by virtue of its own inherent efficiency to create or to transfer an estate, right or interest, that such decree never executes itself, nor furnishes any means or instruments by which it may be executed without the intervention and act of the party against whom it is rendered: that the paintiff in equity never, merely by means of the decree in his favour, either recovers possession of the land or other subject-matter becomes vested with a title to or estate therein; and that the Court simply orders some act to be done, a conveyance to be executed, an instrument to be surrendered up or cancelled, possession delivered, and the life and then merely uses a moral coercion upon the defendant by means of fine and imprisonment to compel himto do what is directed to be done in the judgment. 'This radical difference between the effect of a decree in equity and ajudgment at law, it is urged, shows that there are no equitable primary rights, no equitable estates or interests distinct and separate from the right to obtain such remedies as are administered by the Court of Chancery.' (See. Pomeray's Equity Jurisprudence, Section 134).
In India it is equally well settled that an injunction acts or operates in personam and not in rem.
8. An injunction is a personal remedy and does not run with the land. As such, a decree for an injunction should he executed against the persons against whom the injunction is issued and cannot be executed against any other person in the absence of a statutory provision. This is what has been held in Ganesh Sakharam Saraf v. Narayan Sriram, (AIR 1931 Bom 484).
9. No statutory provision could be shown by Shri V. K. Sapre, learned counsel for the respondents, on the strength of which it may be regarded that permanent injunction issued in the former suit against Daulatsingh may be treated as binding against other members of the family. Daulatsingh is not shown to have been sued in the former suit in the representative capacity, that is, as representing the present plaintiffs also. Accordingly, the provisions of Explanation VI to Section 11 of the Code of Civil Procedure do not come into play. The former suit was also not one brought under Order 1, Rule 8 C. P. C. The former suit having been brought for claiming a relief of issuance of injunction only the decree in respect of which can operate against Daulatsingh, the person actually sued, the decree passed therein cannot operate as res judicata as against the present plaintiff, more so, because the plaintiff-appellants Nos. 2 and 3 are not claiming through Daulatsingh, but have brought the suit on the basis of their independent right. Accordingly, although the plaintiffs happen to be the members of the joint Hindu family of which Daulatsingh is Karta, the decree passed in the former suit against Daulatsingh cannot operate as res judicata precluding the trial of the present suit on merits.
10. The judgment and decree rendered in the former suit (Civil Suit No. 139/ 72) are not shown to be relevant according to the provisions of Section 40 (judgments in personam), Section 41 (judgment inrem), and/or Section 42 (judgments relating to matters of public nature) of the Indian Evidence Act, 1872. Therefore, according to the provisions of Section 43 of the Evidence Act, the judgment passed in the former suit is irrelevant except for the purposes and to the extent, it can be regarded as falling within the provisions of Section 13 of the Evidence Act.
11. In view of the aforesaid discussion, the appeal succeeds and is hereby allowed. The inpugned judgments and decrees are hereby set aside as passed by both the courts below, and it is held that the judgment and decree in the former suit does not operate as res judicata against the present plaintiffs precluding the trial of the present suit on merits. Now the case shall go to the trial court, who shall proceed with trial of the suit on merits in accordance with the law and the observations made hereinabove. In view of the nature of controversy, I make no order as to costs up to this stage.