@JUDGMENTTAG-ORDER
1. The revision petitioners herein being legal representatives of one Sangameswaran, Decree holder in O.S.No.62 of 1981 on the file of the District
Munsif, Gudalur, have filed E.P.No.43 of 1995 contending that the respondent/Judgment debtor had violated the decree for permanent injunction
and had consequently prayed for assistance of the Court for the arrest and imprisonment of the respondent as provided under Order 21, Rule 32
C.P.C. In the Execution Petition itself the petitioners had contended that the petitioners as legal heirs of the Decree holder - Sargameswaran, are
entitled to execute without any separate application, under Order 21, Rule 16 C.P.C. The Execution Petition was however resisted by the
respondent on the ground that he was not in occupation of the suit property and that the Execution Petition as filed without complying with the
requirements under Order 21, Rule 16 C.P.C. was not maintainable. A Commissioner was appointed to submit a report regarding the nature and
identity of the property.
2. While disposing of the Execution Petition, the learned District Munsif, did not discuss or render any Specific finding on the issue as to whether
there was any violation of the decree entitling the petitioners to obtain an order under Order 21, Rule 32 C.P.C. But rejected the Execution
Petition only on the ground that it was not maintainable without the compliance of the requirements under Order 21, Rule 16 C.P.C. Hence, the
Revision Petition.
3. The objection of the respondent which found favour with the learned District Munsif is as regards whether the legal representatives of the
Decree holder should apply for execution of the decree to the Court which granted decree under Order 21, Rule 16 C.P.C. Order 21, Rule 16
C.P.C. is as follows:-
16. Application for execution by transferee of decree- where a decree or, if a decree has been passed jointly in favour of two or more persons,
the interest of any decree-holder in the decree is transferred assignment in writing or by operation of law, the transferee may apply for execution of
the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the
applications were made by such decree-holder;
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, ""notice of such application shall be given to the
transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections if any to its execution;
Provided also that where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be
executed against the others.
4. On the basis of the said provision, the respondent contended that without seeking for two specific orders under Order 21, Rule 16 C.P.C., the
petition as filed by the petitioner was not maintainable. Learned counsel for the petitioner while stating that the order of the learned District Munsif
was not maintainable, contended that Section 146 C.P.C. entitled the petitioners to file the Execution Petition directly without the necessity to
obtain any substitution as contemplated under Order 21, Rule, 16, C.P.C. He also relied on several judgments to sustain his point.
5. On the other hand Mr. Ilango appearing for the respondent/Judgment-debtor would mainly rely on the judgment of a Division Bench of this
Court reported in Narayanan Chetti and Others Vs. Panchanathan Chettiar and Others, and that of a judgment of K.M. Natarajan, J, reported in
Chinnammal Vs. Nagarathinammal, . In the judgment reported in Narayanan Chetti and Others Vs. Panchanathan Chettiar and Others, it is true
that the Division Bench has held that the appellants being the legal representatives of the deceased Decree-holder, they were not decree-holders as
defined in Section 2 C.P.C. and that although the sons may well have been entitled along with the decree-holders to the benefits of the decree, it
was impossible to say that they were decree holders and that therefore, Order, 21, Rule 16 was applicable. In the judgment reported in
Chinnammal Vs. Nagarathinammal, the learned Judge has held that a decree for permanent injunction was a personal decree and it did not run with
the land and its execution by the purchasers was not maintainable. The learned Judge also held that he can file a fresh suit on the same cause of
action. Reliance was also placed on the judgment of a single judge of the Kerala High Court reported in Padmanabhan Pillai and Another Vs.
Sulaiman Kunju Ahamed Koya and Others, in which the learned Judge held that an assignee of a decree can execute the decree by invoking the
provision of Order 21, Rule 16 C.P.C. On the other hand, Mr. B. Soundarapandian, learned counsel for the petitioner has referred to various
decision in support of his point that in view of the wider powers u/s 146 C.P.C., the petition as filed by the legal representatives of the decree-
holder was maintainable without necessity to comply with Order 21, Rule 16 C.P.C. A perusal of the judgments relied on by Respondent, shows
that eventhough the Division Bench in Narayanan Chetti and Others Vs. Panchanathan Chettiar and Others, , has held that the sons of the decree-
holders cannot seek to execute a decree without complying the requirements under Order 21, Rule 16, C.P.C., several later judgments have been
rendered subsequently, holding that it was sufficient for the legal representatives to invoke provisions u/s 146 C.P.C. Following the judgments of
the Supreme Court reported in Jugalkishore v. Raw Cotton Co. Ltd., AIR 1955 S.C. 376 and Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi
and Another, Kailasam, J, as he then was Ponniah Pillai Vs. T. Natarajan Asari, has held to the effect that the transferors not falling within the
provisions of Order 21, Rule 16, C.P.C. may avail themselves of the provision u/s 146 C.P.C. and even a person claiming the benefit of decree by
assignment of the decree after decree was passed can avail himself the provisions of Section 146, C.P.C.
6. R. Sadasivam, J in the judgment reported in Karuppa Goundar Vs. Chinna Angappa Goundar, has held that in the case of a person succeeding
to the interest of the decree-holder by purchase, there was no scope for invoking the provision of Order 21 Rule 16, C.P.C. But Section 146,
C.P.C. Which was wider in its amplitude than Order 21, Rule 16, C.P.C. enables persons who have succeeded to the interest of the decree-
holder to execute the decree.
7. K.M. Natarajan, J. in another judgment reported in Gnanasundaram and Another Vs. Murugesa Naicker, , has also held that a transferee of a
property under a compromise decree was entitled to maintain an application under Sec. 146 C.P.C. to execute the decree.
8. The judgment of the Supreme Court reported in Muthukaruppa Pillai v. Ganesan conclusively establishes that an adopted son filing an
application for executing the decree as filed u/s 146 and Order 21 Rule 16, C.P.C. was maintainable. The Court has held that the interest of the
decree-holder was a heritable interest and hence the decree cannot be described to be personal in nature. The contention that a decree for
injunction was personal in nature was rejected by the Supreme Court and it was held that there was nothing in the decree also to show that in the
restriction expressly nor impliedly could be held that the decree would lapse on the death of the plaintiff.
9. Therefore, on any analysis of the decisions cited above, especially, the latest judgment of the Supreme Court reported in Muthukaruppa Pillai v.
Ganesan, 1995 Supp. (3) S.C.C. 69, a person succeeding to a decree can seek to execute u/s 146 C.P.C. and that unless and otherwise the
decree for injunction was specifically restricted to the plaintiff, it is definitely executable by any individual succeeding to the interest of the decree
holder.
10. Therefore, the order of the learned District Munsif cannot be sustained and that execution petition filed by the revision petitioners has to be
held to be maintainable. However, the learned District Munsif did not go into the issue as to whether there was any violation of the decree as
contended by the revision petitioners. The finding on the said issue would be necessary before invoking the provisions under Order 21, Rule 32,
and therefore, the order passed in Execution Petition No.43 of 1995 in O.S.No.62 of 1981 is liable to be set aside and has to be remanded back
to the learned District Munsif for further enquiry and specific findings as regards whether there is any violation of the decree for injunction.
11. Therefore, subject to the above observation, this revision is allowed. The order of the Court below passed in E.P.No.43 of 1995 in
O.S.No.62 of 1981 is set aside and remanded back to the learned District Munsif for proceeding further as indicated above. The learned District
Munsif will give opportunity to both sides to adduce evidence on the issue as to whether there is violation of the decree or not and to proceed
further according to law. The said Execution petition shall be disposed of within two months from the date of receipt of a copy of this order. No
costs.
