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Silu Peda Yelligadu Vs. Sree Raja Bavu Venkata Kumara Mahipati Surya Rao Bahadur Zamindar Garu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported inAIR1915Mad914(2); 31Ind.Cas.542
AppellantSilu Peda Yelligadu
RespondentSree Raja Bavu Venkata Kumara Mahipati Surya Rao Bahadur Zamindar Garu and anr.
Cases ReferredHansraj Pal v. Mukhraji Kunwar
Excerpt:
civil procedure code (act 7 of 1908), order xxi, rule 16 - execution--injunction, decree for, in respect of easement--transfer of dominant tenement--no application by transferee--decree-holder, right of, to execute decree--executing court, competency of, to consider incapacity of decree-holder to enjoy easement awing to transfer of dominant tenement. - .....the property to which the right of easement was attached had been subsequently transferred by the decree-holder to a third person. the transferee has not appeared and is not on the record of the case nor has he applied for permission to execute the decree. so far as the record goes, the judgment-creditor is the decree-holder and is, therefore, prima facie entitled to execute the decree. it may be that the land having been sold, the decree-holder is not entitled to enjoyment of the easement, but that is a question which it is not competent for a court executing the decree to deal with in the circumstances of this case. it was bound to allow execution at the instance of the decree-holder as there was no other person who had the right to execute the decree.2. the ruling reported as ram.....
Judgment:

1. This is an appeal against the order of the lower Appellate 'Court setting aside a portion of the order of the Court of the first instance. The lower Appellate Court disallowed execution of the decree so far as injunction against the judgment-debtor was concerned, on the ground that the property to which the right of easement was attached had been subsequently transferred by the decree-holder to a third person. The transferee has not appeared and is not on the record of the case nor has he applied for permission to execute the decree. So far as the record goes, the judgment-creditor is the decree-holder and is, therefore, prima facie entitled to execute the decree. It may be that the land having been sold, the decree-holder is not entitled to enjoyment of the easement, but that is a question which it is not competent for a Court executing the decree to deal with in the circumstances of this case. It was bound to allow execution at the instance of the decree-holder as there was no other person who had the right to execute the decree.

2. The ruling reported as Ram Sahai v. Gaya (1884) A.W.N. 224 is very much to the point. There the decree-holder had sold the property which gave rise to a right of pre-emption, and the contention was raised that the property having been sold, the decree could not be executed at the instance of the decree-holder. That contention was disallowed on the ground, that the executing Court was bound to recognise the decree-holder on record. There are a number of other decisions which follow the principle laid down there. See Jagat Tarini Dasi v. Rakhal Chandra Tewary 14 C.W.N. 752, Jasoda Deye v. Kirtibash Das 18 C.K 639, Hansraj Pal v. Mukhraji Kunwar (1907) A.W.N. 280 . The appeal should be allowed. The lower Appellate Court's order is, therefore, set aside and the District Munsif's order restored. The respondent must pay the costs of the appellant in this and the lower Appellate Court.


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