# State of U.P. & Ors v. Smt. Kamla Negi & Ors

- **Citation:** (2024) 5 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Matters Under Article 227 No. 1807 of 2015
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-smt-kamla-negi-ors-52109
- **Pages:** 18

## Headnote

Civil law - Civil Procedure Code - Sections
47, 50, 51, 146 & 151 - O.9 - Rule13 - O.21
R.16, O.21 R.32, - Limitation Act, 1963 -
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 135 - Decree holder was in
possession of suit property, while in
possession, had transferred said property
to assignees, who were dispossessed by
judgment-debtor/St., during pendency of
second appeal against judgment and
decree passed by trial court, affirmed in
first appeal dismissing their suit for
permanent injunction - The assignees of
decree holder having a decree of perpetual
injunction, dispossessed and execution
case filed for restoration of possession -
Judgment debtor didn't challenge ex parte
judgment and decree - Filed a separate suit
for permanent prohibitory injunction on
basis of title, suit was dismissed on
24.01.2007,
also
first
appeal
was
dismissed on 02.06.2008 and against
which
Second
Appeal
dismissed
-
Aforesaid
orders
challenged
in
SLP,
dismissed on 16.09.2023 - Two execution
applications being filed one after another,
it would not vitiate execution proceedings,
provided it is initiated within time - In the
instant case, the executing court rejected
the objection filed by judgment-debtors
u/s 47 C.P.C., thereafter pass orders u/s
151 C.P.C. directing for Amin report
regarding delivery of possession - Matter is
remitted to decide afresh, in relation to
performance
of
decree
of
perpetual
injunction. (Para 21, 22, 23, 38, 50, 60)
Petition partly allowed. (E-13)

List of Cases cited:

## Text

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5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
361
entitled to reappreciate the oral and
documentary evidence;

8.3. The appellate court, while
deciding an appeal against acquittal, after
re-appreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;

8.4. If the view taken is a possible
view, the appellate court cannot overturn
the order of acquittal on the ground that
another view was also possible; and

8.5. The appellate court can
interfere with the order of acquittal only if it
comes to a finding that the only conclusion
which can be recorded on the basis of the
evidence on record was that the guilt of the
accused was proved beyond a reasonable
doubt and no other conclusion was
possible."

67. Thus, it is beyond the pale of doubt
that the scope of interference by an appellate
Court for reversing the judgment of acquittal
recorded by the trial Court in favour of the
accused has to be exercised within the four
corners of the following principles:-

a) That the judgment of acquittal
suffers from patent perversity;

b) That the same is based on a
misreading/omission to consider material
evidence on record;

c) That no two reasonable views
are possible and only the view consistent
with the guilt of the accused is possible from
the evidence available on record.

68. The appellate Court, in order to
interfere with the judgment of acquittal
would have to record pertinent findings on
the above factors if it is inclined to reverse
the judgment of acquittal rendered by the
trial Court.

69. In the light of above settled
proposition of law when we go through the
impugned judgment and order, we find that
the trial court had given cogent and
convincing reasons for recording the finding
of acquittal against the accused-respondent
and that the acquittal of the accusedrespondent is plausible and justifiable view
emanating from the discussion of the
evidence available on record and does not
suffer from any infirmity or perversity.
Therefore, we are of the opinion that the
impugned judgement and order passed by
the trial court is just, proper and legal and do
not call for any interference by this Court.

70. The present government appeal
lacks merit and is accordingly dismissed.

71. Trial court's record be remitted
back forthwith.
----------
(2024) 5 ILRA 361
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 1807 of 2015
connected with
Matters Under Article 227 No. 1806 of 2015

State of U.P. & Ors. ...Petitioner
Versus
Smt. Kamla Negi & Ors. ...Respondents

Counsel for the Petitioner:
Dr. Madhu Tandon

Counsel for the Respondents:
K.K. Arora, Archit Mehrotra, Pankaj Rai

Civil law - Civil Procedure Code - Sections
47, 50, 51, 146 & 151 - O.9 - Rule13 - O.21
R.16, O.21 R.32, - Limitation Act, 1963 -
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 135 - Decree holder was in
possession of suit property, while in
possession, had transferred said property
to assignees, who were dispossessed by
judgment-debtor/St., during pendency of
second appeal against judgment and
decree passed by trial court, affirmed in
first appeal dismissing their suit for
permanent injunction - The assignees of
decree holder having a decree of perpetual
injunction, dispossessed and execution
case filed for restoration of possession -
Judgment debtor didn't challenge ex parte
judgment and decree - Filed a separate suit
for permanent prohibitory injunction on
basis of title, suit was dismissed on
24.01.2007,
also
first
appeal
was
dismissed on 02.06.2008 and against
which
Second
Appeal
dismissed
-
Aforesaid
orders
challenged
in
SLP,
dismissed on 16.09.2023 - Two execution
applications being filed one after another,
it would not vitiate execution proceedings,
provided it is initiated within time - In the
instant case, the executing court rejected
the objection filed by judgment-debtors
u/s 47 C.P.C., thereafter pass orders u/s
151 C.P.C. directing for Amin report
regarding delivery of possession - Matter is
remitted to decide afresh, in relation to
performance
of
decree
of
perpetual
injunction. (Para 21, 22, 23, 38, 50, 60)
Petition partly allowed. (E-13)

List of Cases cited:

1. Thazhapattathillath Krishnan Namboo-Diri Vs
Thazhapattathillath
Damodaran
Namboodiri
(died); AIR (KER)-2005-0-328

2. Dhani Ram Gupta Vs Lala Sri Ram; 1980 (2)
SCC 162

3. Dwar Buksh Sirkar Vs Fatik Jali; ILR 26 Cal 250,
253, 254

4. Prabhakar Adiga Vs (2017) 4 SCC 97

5. Rajbahadur Yadav & ors.Vs Rizvi ESt.s & Hotels
Pvt. Ltd.; 2014 (Suppl.) CCC 613 (Bombay)

6. Pentapati China Venkanna & ors. Pentapati
Bangararaju & ors; 1964 SCC OnLine SC 250
7.Bandhu Singh Vs Kayastha Trading Bank;
(1931) ILR 53 All 419

8. N.S.S. Narayana Sarma & ors. Vs Goldstone
Exports (P) Ltd. & ors; (2002) 1 SCC 662

9. Kapoor Singh Vs Om Prakash; AIR 2009 P&H
188

10. Chakradhar Paital Deceased by LRs Vs Gelhi
Bawa, AIR 2012 Ori 44

11. Ashok Kumar & ors. Vs Khyali Ram & ors;
2023 SCC OnLine Del 2882

12. Nanu Vs Ammalukutty Amma; 1962 KER LT
223

13. Arjun Singh Vs Mohindra Kumar; AIR 1964 SC
993

14. K.K. Velusamy Vs N. Palanisamy; (2011) 11
SCC 275

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri M.C. Chaturvedi, learned
Additional Advocate General assisted by Sri
Sanjay Kumar Singh and Sri Madhu
Tandon, learned Standing Counsel for the
petitioners and Sri K.K. Arora, learned
counsel appearing for the decree holderrespondents.

2. The petition bearing No.1807 of
2015 under Article 227 arises out of an order
dated 25.08.2014 passed by the executing
court in execution case No.70 of 2010
directing for delivery of possession of the
property in question to the assignees of the
decree holder in performance of the decree
of
permanent
prohibitory
injunction
affirmed in revision No.67 of 2014 whereas
petition bearing No.1806 of 2015 arises out
of an order dated 29.03.2014 passed by the
executing court dismissing the misc. case
under Section 47 C.P.C. instituted by the
judgment-debtors/
State
petitioners,
5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
363
affirmed in revision petition No.66 of 2014.
Since pleadings have been exchanged in
petition No.1807 of 2015, the same is taken
to be leading petition for the purposes of
statement of facts and pleadings raised
before the court below and before this Court
with consent of learned advocates for the
parties and thus both the petitions are being
decided simultaneously.

3. Petitioners before this Court are the
State of U.P. through District Magistrate,
Moradabad, Sub Divisional Magistrate,
Moradabad and Tehsildar of Tehsil Sadar
district- Moradabad.

4.

These
petitions
invoking
supervisory/ superintending jurisdiction of
this Court under Article 227 of the
Constitution has been filed against the order
passed by the Executing Court dated
19.03.2014 and 25.08.2014 in Execution
Case No.70 of 2010 (Ashok Kumar Gupta &
ors v. State of UP & ors) rejecting the
objection filed by the State-petitioners and
direction for parvana bedakhli inviting
Amin report and the order dated 26.03.2015
passed by the Additional District Judge,
Court No.5, Moradabad dismissing the two
revision petitions of the petitioners against
the above two orders.

5. Briefly stated facts as pleaded in the
petition are that a suit being O.S. No.705 of
1992 instituted by one Smt. Kamla Negi for
permanent prohibitory injunction in respect
of suit property impleading the petitioners as
defendants, came to be decreed ex parte
against the petitioners. This ex parte decree
was never appealed against and the State
respondents
have
just
preferred
an
application under Order IX Rule 13 of
C.P.C. seeking recall of ex parte order but
the
same
has
remained
pending
consideration by the court concerned.
Subsequently, the suit property came to be
sold away by the plaintiff, Smt. Kamla Negi
to Mr. Ashok Kumar Gupta and Rajiv
Kumar (respondents) vide registered saledeed dated 01.09.2003. It is Smt. Kamla
Negi
and
these
very
respondents
(subsequent purchasers) who instituted
execution case for getting the ex parte
decree for permanent perpetual injunction.

6. The plaint case as was set up by Smt.
Kamla Negi in the suit was that suit property
was owned by her father Late S.D Singh
who executed a Will in her favour on
20.11.1968 and this is how this building in a
dilapidated condition came to be owned by
her which was later on repaired and
improved upon by Smt. Kamla Negi, the
plaintiff and her husband out of their own
money
and
also
got
the
electricity
connection sometimes in the year 1985-86.
It was claimed that earlier her husband, who
was working in Tehsil department, was
living
in
an
official
accommodation
provided to him but when this building got
renovated, he shifted in this building and the
official accommodation of Nayab Tehsildar
which he was occupying was handed over to
Sukh Ram Singh. The necessity arose to
institute a suit because the then Tehsildar
Jitendra Bahadur Singh was envious of her
husband and was insisting upon him to
vacate
the
premises
of
official
accommodation which her husband was
earlier occupying and then ultimately sent
notice on 02.11.1992 asking him to vacate
the premises in question. It was also pleaded
that later on at around 06.00PM on
03.11.1992, the staff of the Teshil came to
the house of petitioner and tried to
physically evict the plaintiff and her
husband from the house. The petitioners
(defendants in the suit) did file their written
statement but failed to contest the case by
ensuring appearance in their behalf and this
364 INDIAN LAW REPORTS ALLAHABAD SERIES
is how the suit continued ex parte since
28.08.1997 and got decreed accordingly on
26.11.1997. It is this decree that was put to
execution.

7. Besides above, certain more facts
had been pleaded by the contesting
respondents in this case who were pursuing
execution case that these State petitioners
had also instituted a suit in respect of the
property in question showing it to be a part
of plot No.57 as adjacent to it plot No.56
was a government property recorded as
women hospital.

8. The aforesaid suit instituted for
permanent
prohibitory
injunction
impleading Ashok Kumar and Rajiv Kumar
Trehan was dismissed on merits on
24.01.2007. A regular civil appeal being
Civil Appeal No.28 of 2007 preferred by the
State (petitioners herein) came to be
dismissed on 02.01.2008. Against the said
order, a second appeal No.829 of 2008 was
filed before this Court on the plea that
substantial questions of law were involved
but the Court declined to entertain the appeal
and dismissed the same on 18.03.2010,
against which Special Leave to Appeal
(Civil) being CC No.14763 of 2012 was
filed which was also dismissed by Supreme
Court vide order dated 16.09.2013. It is
pleaded also in the counter affidavit that two
execution cases came to be filed: one being
10 of 2010 and other being 70 of 2010
arising out of same judgment and decree,
dated 26.11.1997 passed in O.S. No.705 of
1992.

9. In the objection filed by the
petitioners under Section 47 C.P.C., plea
was taken that judgment and decree dated
26.11.1997 was inexecutable. A suit for
perpetual injunction was instituted for the
purposes of possession claimed by Smt.
Kamla Negi and, therefore, the injunction
was to be in personam. It is, thus, pleaded
that decree for injunction on the basis of
possession would operate inter se parties to
the suit and upon any third party rights being
created, the decree would not stand
transferred to the third party automatically
to be executed. It was pleaded, if parties
seeking execution came in possession later
then all the more execution application was
not maintainable because it was a decree on
the basis of possession of plaintiff. It was
further pleaded that as a matter of fact, Smt.
Kamla Negi was never in possession,
therefore, even if the sale-deed was
executed, the possession cannot be taken to
have been transferred by Kamla Negi to
these very respondents.

10. These very objections were
opposed by Smt. Kamla Negi and other
respondents taking the plea that false
statements of fact have been made. An
objection was also taken that if petitioners
were in possession of the property and were
claiming rights, then they would have
succeeded in their original suit No.721 of
2003 which had been dismissed on merits
upto the Supreme Court.

11. Thus, according to decree holders,
all these objections were being taken to
delay the execution of the decree and it was
pleaded that Section 47 objection deserved
rejection.

12. After hearing the parties to the
execution case, upon Section 47 objection
filed by the judgment debtors, it was held by
the executing court that execution case was
rightly filed and since the plaintiff was
dispossessed during pendency of the second
appeal before the High Court arising out of
an unsuccessful suit filed by judgmentdebtors, then the decree holder was entitled
5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
365
to restoration of possession. The Court held
that the objection raised under Section 47 of
C.P.C. to resist the execution of the decree,
was meritless and accordingly, rejected the
same vide order dated 29.03.2014. After
rejecting the objection, the executing court
directed vide order dated 25.08.2014 to
Amin Commissioner to submit a report on
02.09.2014 regarding status of the suit
property and restoration of possession with
the help of police force. This order came to
be passed upon a miscellaneous application
filed under Section 151 of C.P.C. Two
revision petitions were filed against these
two orders passed by the executing court
that were admitted on 05.09.2014 as Civil
Revision Nos. 66 of 2014 and 67 of 2014
and interim protection was also granted to
the petitioners. However, both the revision
petitions were ultimately dismissed on
merits by the Court vide detailed common
judgment and order dated 26.03.2015
holding that a decree of permanent
injunction was executable by assignees in
view of provisions contained under Order 21
Rule 16 of C.P.C. The Court did not find any
merit in the argument raised on behalf of
revision applicants-petitioners that in light
of miscellaneous case being Case No.5/2009
registered under Order IX Rule 13 CPC
seeking to set aside the ex parte judgment
and decree, the execution of such ex parte
decree be put on hold.

13. Assailing these two orders before
this Court in these two petitions, the first
argument advanced by learned Additional
Advocate General was that execution
application for a decree for permanent
perpetual injunction was filed beyond the
prescribed period under Article 135 of the
Limitation Act. The second argument was
that the execution of a decree could be made
in the manner and method prescribed under
Order 21 Rule 32 C.P.C. In other words, it
had been argued that if specific provision
providing for execution was there prescribed
under Order 21 Rule 32 C.P.C., no order for
restoration of possession could have been
passed upon an misc. application filed under
Section 151 C.P.C. The third argument
advanced was that the injunction was always
relating to the land of which the possession
was continuing with the decree holder and
with the transfer of land, possession if
transferred and the decree of injunction was
neither transferable nor enforceable by a
third party.

14. It was argued by Sri Chaturvedi,
learned Additional Advocate General that
looking to the provisions contained under
Order 21 Rule 32, only attachment of the
property could have been made to ensure
performance of decree on the part of
judgment-debtor.
Learned
Additional
Advocate General has relied upon judgment
of Kerala High Court in the case of
Thazhapattathillath Krishnan NambooDiri v. Thazhapattathillath Damodaran
Namboodiri (died); AIR (KER)-2005-0328.

15. It was further argued by learned
Additional Advocate General that the
interpretation as had been made of the
provisions contained under Order 21 Rule
16 C.P.C. by the Court sitting in revision
under the order impugned was an erroneous
one. The argument, therefore, was that
execution case was not maintainable at the
instance of assignees.

16. Yet another argument was that two
execution
applications
were
not
maintainable at the same point of time being
No.10 of 2010 and 70 of 2010 one by Smt
Kamla Negi with assignees and other by
assignees alone for execution of the same
decree. It was also pleaded that ex parte
366 INDIAN LAW REPORTS ALLAHABAD SERIES
decree in respect of the government property
was inexecutable as the trial court that had
passed the judgment had no jurisdiction to
try a suit of more than valuation of Rs.1 Lac.

17. Meeting the arguments, Sri Arora
defended the orders passed by the executing
court as well as court sitting in revision and
contended that all these legal aspects had
been dealt with in detail by the court sitting
in revision more especially dealing with
principle as contained under Order 21 Rule
32 C.P.C. read with Order 21 Rule 16 C.P.C.
He had argued that assignees were equally
entitled to get the decree of injunction
executed. He had further submitted that as
far as limitation to file execution case was
concerned, in view of Article 135 of the
Limitation Act, 1963 there ws no limitation
for executing a decree of perpetual
injunction. He had contended that though
title as such was not declared by the
executing court but since the decree was
passed on the basis of possession, such a
decree was executable.

18. On the question of application filed
under Section 151 C.P.C., Mr. Arora argued
that inherent powers contained under
Section 151 C.P.C. are independent of all
the provisions and in order to arrest any
miscarriage of justice, the Court had been
vested with such inherent power. On the
question of restoration of possession,
learned Advocate, Mr. Arora argued that for
executing a decree of perpetual injunction,
the executing court can put back into
possession the decree holder, especially in
the circumstances when it was established
that decree holder was dispossessed by
committing trespass at the end of judgment
debtors. He had submitted that it was
admitted position that during pendency of
appeal before this Court arising out of OS.
No.721 of 2023, that decree holders were
dispossessed.

19. Besides above, additionally it had
been argued by Mr. Arora that petitioners
were non suited in their own suit for
permanent prohibitory injunction filed by
them on the basis of title and possession.
This suit being No.721 of 2023 in respect of
the same suit property, it did not lie in the
mouth of the petitioners to suggest now that
they were title holder of the property and
therefore, they could have resisted execution
of a decree of an earlier suit passed by the
decree holder. He had argued that judgment
of the trial court as well as court sitting in appeal
arising out of Suit No.721 of 2003 was on merits
and the High Court had very much dismissed the
second appeal having found no substantial
question of law to be arising. All these orders had
come to be affirmed in Special Leave to Appeal
by the Supreme Court and, therefore, now any
claim in respect of the suit property in question
by the petitioners, did not survive. He had also
argued that there was no error apparent in the
judgments passed by the executing court as well
as the court in revision so as to warrant
interference by this Court under Article 227 of
the Constitution.

20. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, I find following points
to be arising for consideration by this Court:

(i) Whether execution in question
of a decree upon an injunction was barred by
time;

(ii)
Whether
subsequent
purchasers/assignees could have maintained
the execution case.;

(iii)
Whether
two
execution
applications were maintainable in respect of
one decree; and
5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
367

(iv) Whether in the face of the
provisions contained under Order 21 Rule
32 C.P.C., the executing court was justified
in invoking its inherent jurisdiction/power
under section 151 C.P.C. directing for
restoration of possession of the decree
holders.

21. The above points are to be
considered in light of admitted factual
background of the case. Admitted fact was
that the decree holder was in possession of
the suit property and while in possession,
had transferred property in question with
possession to the assignees and it was
assignees who were dispossessed by the
judgment-debtor/State-petitioners
during
pendency of such second appeal against
judgment and decree passed by the trial
court affirmed in first appeal dismissing
their suit for permanent injunction. This
specific plea has been taken in paragraph 54
of the counter affidavit and which has not
been specifically denied. This fact position
also gets confirmed from the objections
raised by the judgment-debtor that in
execution case, an order for restoration of
possession cannot be passed in favour of
decree holder for a decree of perpetual
injunction. It is also pleaded that land
belonged to the State. This plea has been
taken in paragraph 51 of the rejoinder
affidavit filed in reply to paragraph 54 of the
counter affidavit.

22. Thus, it is clear that the assignees
of decree holder though having a decree of
perpetual injunction and yet came to be
dispossessed subsequently and that is how
this execution case came to be filed for
restoration of possession.

23. Yet another admitted position is
that the State petitioners- judgment debtor
did not challenge the ex parte judgment and
decree in O.S. No.705 of 1992 passed on
28.08.1997. However, they chose to file a
separate suit for permanent prohibitory
injunction being O.S. No.721 of 2003 on the
basis of title as per the records of Khatauni,
which they had pleaded before the executing
court also, but the said suit came to be
dismissed on 24.01.2007 against which first
appeal being Civil Appeal No.28 of 2007
was dismissed on 02.06.2008 and against
which Second Appeal No.829 of 2008 also
got dismissed by this Court. These orders
passed by the trial court, court of first appeal
and second appeal were all challenged in
Special Leave to Appeal which also got
dismissed on 16.09.2023 by the Supreme
Court.

24. Thus, the judgment debtor lost
their case not only for prohibitory injunction
against the respondents but also failed to get
the ex parte decree recalled.

25. In so far as first point (i) is
concerned, the limitation for execution of
any decree other than the mandatory
injunction is prescribed in Article 136 of the
Schedule of the Limitation Act, 1963. This
Article 136 is reproduced hereinunder in its
entirety:

Descripti
on of suit
Period
of
limitati
on
Time
from
which
period begins to run
136. For
the
execution
of
any
decree
(other
than
a
decree
granting
Twelve
years
When the decree or
order
becomes
enforceable or where
the decree or any
subsequent
order
directs any payment
of money or the
delivery
of
any
property to be made
368 INDIAN LAW REPORTS ALLAHABAD SERIES
a
mandator
y
injunctio
n)
or
order of
any civil
court.
at a certain date or at
recurring
periods
when
default
in
making the payment
or delivery in respect
of which execution is
sought, takes place.

Provided
that
an
application for the
enforcement
or
execution
of
a
decree granting a
perpetual injunction
shall not be subject
to any period of
limitation."

26. From a bare reading of the
aforesaid provision, it is clear from the
proviso that an application for enforcement
or execution of a decree granting a perpetual
injunction, is not subjected to any period of
limitation. There is no dispute between the
parties to the execution case that the decree
sought to be executed is in the nature of
prohibitory perpetual injunction restraining
the judgement-debtors from interfering with
the possession of the plaintiffs qua the land
in suit. It is this land in suit in respect of
which the enforcement of injunction is
sought by instituting the present execution
case. It is admitted position of a fact that the
assignees of the judgment-debtors who
acquired possession in the year 2003 were
dispossessed in the year 2008 by the Staterespondents/judgment-debtors
during
pendency of their second appeal before this
Court. The execution application was
accordingly filed in the year 2010 so that the
decree of injunction was violated in the year
2008 only and within two years' time, the
execution case was filed.

27. Thus, there being no limitation to
get the decree executed for perpetual
injunction, I do not see any limitation
coming in the way of the executing court in
entertaining the execution case for execution
of decree.

28. Coming to the point no. (ii)
whether the transferee as assignees, the
original
decree
holder
could
have
maintained an execution case or not, the
legal position again is very clear that once
the property in suit has been transferred by
an instrument of sale to a third party along
with possession then such third party is
entitled to get the decree enforced. Under
Order 21 Rule 16 C.PC, a transferee can
apply for execution of decree. Order 21 Rule
16 CPC for ready reference is reproduced
hereinunder:

"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 in transferred by assignment in
writing or by operation of law, the
transferee may apply for execution of the
decree to the Court which passed if, and the
decree may be executed in the same manner
and subject to the same conditions as if the
application were made by such decreeholder:

Provided also 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
5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
369
of them, it shall not be executed against the
others.

Explanation-

Nothing in this rule shall affect
the provisions of Section 146, and a
transferee of rights in the property, which
is the subject matter of the suit, may apply
for execution of the decree without a
separate assignment of the decree as
required by this rule."
(emphasis added)

29. Thus, the only requirement for the
executing court is to hear the other side to
whom the notice is sent besides the
objections also. It is necessary to refer here
146 CPC at the same time which runs as
under:

"146. Proceedings by or against
representatives: Save as otherwise provided
by this Code or by any law for the time being
in force, where any proceeding may be taken
or application made by or against any
person, then the proceeding may be taken or
the application may be made by or against
any person claiming under him."

30. A harmonious reading of the two
provisions as contained under Order 21 Rule
16 and Section 146 of the C.P.C. would lead
to a construction that any right created in the
property by operation of law or by an
instrument recognied under the law, would
bind such party under the obligation arising
out of such property and would hold entitled
an assignee to all interest arising out of such
property. Thus, if by sale of an immovable
property duly registered as per requirement
of law under the Transfer of Property Act,
executed in favour of the party and that
property is subject to a decree by a court of
law, then such assignee/transferee would be
bound by obligations attached to the
property and also eligible to rights arising
out of such property as recognised under
law.

31. It is further interesting to note here
that the sale-deed was executed in favour of
the assignees in the year 2003 with the
transfer
of
possession
but
forceful
dispossession of these assignees took place
in the year 2008 while the second appeal
was pending before the High Court. It is also
worth mentioning here that the execution
application was initially filed by the original
decree holder and the assignees and was
registered as Execution Case No.10 of 2010.

32. In a judgment in the case of Dhani
Ram Gupta v. Lala Sri Ram; 1980 (2) SCC
162, the Supreme Court citing the judgment
of Calcutta High Court in the case of Dwar
Buksh Sirkar v. Fatik Jali; ILR 26 Cal 250,
253, 254 held thus:

"the only provision in the Code
referring expressly to the assignment of a
decree is contained in Section 232, and that
no doubt contemplates a case in which the
assignee applies for execution. In such a
case the Court may, if it thinks fit, after
notice to the decreed older and the
judgment-debtor, allow the decree to be
executed by the assignee. If, however, there
is an assignment pending proceedings in
execution taken by the decree-holder, I see
nothing in the Code which debars the Court
from recognising the transferee as the
person to go on with the execution. The
recognition of the Court is no doubt
necessary before he can execute the decree,
but it is the written assignment and not the
recognition which makes him the transferee
in law. The omission of the transferee, if it
was an omission, to make a formal
application for execution, was merely an
error of procedure and does not affect the
merits of the case. ................... It is argued
370 INDIAN LAW REPORTS ALLAHABAD SERIES
for the respondent that the transferee's title
was not complete as express notice of the
transfer had not been given to the judgmentdebtor. As already observed, the transfer, as
between transferor and the transferee, is
effected by the written assignment. If the
judgment-debtor had no notice of the
transfer and being otherwise unaware of it
paid the money to the decree-holder, the
payment was, of course, a good payment,
and he cannot again be held liable to the
transferee."
(emphasis added)

33. The issue whether injunction was
enforceable by a third party and whether a
decree of injunction would end with the land
transferred to a third party has been raised
on the principle that right to injunction with
a person ends with that person extinguishing
his rights in the property and does not get
transferred to transferee or assignee.

34. Sri Chaturvedi, learned Senior
Advocate had cited the judgment of
Supreme Court in the case of Prabhakar
Adiga v. (2017) 4 SCC 97, relying upon a
maxim "actio personalis moritur cum
persona". The Court in that case had held
that the maxim was not applicable because
the decree was binding upon the heirs of the
deceased-judgment debtor under Section 50
C.P.C. read with Order 21 Rule 32 C.P.C.
The court there in that case gave a
harmonious construction of Section 50
C.PC. read with Section 146 C.P.C. and
Order 21 Rule 16 C.P.C read with Order 21
Rule 32 C.P.C. and held that legal
representatives of judgment-debtor would
be bound under Order 21 Rule 32 for the
performance of decree. Section 50 arrests a
situation from a decree getting frustrated if
the judgment-debtor dies and, therefore, to
meet that contingency, it has provided
specific powers for execution of decree by
legal representatives and heirs. The legal
representatives and heirs may not be
transferees strictu sensu but the transferees
by virtue of transfer once stepped into the
shoes of the vendor, therefore, whatever
rights and obligations are there with the
vendor become binding upon the vendees as
well in view of Section 146 C.P.C.

35. In the case of Rajbahadur Yadav
& ors v. Rizvi Estates & Hotels Pvt. Ltd.;
2014 (Suppl.) CCC 613 (Bombay), a Single
Judge of the Bombay High Court dealt with
various provisions of C.P.C. and held that it
was not necessary for the decree holder to
assign the decree in favour of the subsequent
purchaser.
The
Court
observed
that
subsequent purchaser who purchases the
property in respect of which decree has been
passed, acquires a right to execute the
decree.

36. Reading down section 51(3) with
Section 146 C.P.C., Order 21 Rule 16 C.P.C.
and Order 21 Rule 32 (5) C.P.C., the Court
has an ample power to get the decree
executed in the manner it is required
including power to ensure delivery of
possession to dispossess the decree holder.

37. Therefore, in my considered view,
the
execution
application
by
the
transferee/assignees in the present case was
maintainable. Point no.(ii) is decided
accordingly.

38. So far as the point No.(iii) is
concerned
regarding
two
execution
applications being filed one after another,
whether it would vitiate the execution
proceedings, I would hold that two
applications would not vitiate the entire
execution proceedings. In one execution
application being No.10 of 2010 both the
decree holder and the assignees/transferees
5 All. State of U.P. & Ors. Vs. Smt. Kamla Negi & Ors.
371
are party while in the second execution
application being 70 of 2010, only
assignees/transferees are applicants. In both
the
execution
applications,
State
respondents/ judgment-debtors are party and
the property is the same. When no new cause
is shown in the subsequent application filed
and they relate to the same decree merely
because a subsequent application has been
filed by assignees alone, it would not vitiate
the execution proceedings provided ofcourse, the execution proceedings have been
initiated well within time.

39. In the case of Pentapati China
Venkanna & ors Pentapati Bangararaju &
ors; 1964 SCC OnLine SC 250, such an
issue arose about two execution petitions
filed being Nos.58 of 1953 and 13 of 1939.
Though of course in that case, about the
same property in suit, one execution was
filed for one part earlier and for another part,
execution case was filed subsequently but
the property remained the same. The Court
held that a comparison of the two execution
petitions shows that the parties are the
same: the new parties added in the present
execution petition are either the legal
representatives of the deceased parties or
the representative of a party who has
become insolvent. In the present execution
petition
the
decree-holders
are
not
proceeding against any property against
which they did not seek to proceed in the
earlier proceeding; they only omitted some
of the properties. The Court distinguished
the judgment of Bandhu Singh v.
Kayastha Trading Bank; (1931) ILR 53
All 419 wherein the execution application
was filed after 12 years and so was taken a
fresh application to be barred by time but
where both the applications relate to same
subject matter of a decree, then subsequent
application cannot be treated to be a fresh
application and order can be passed
thereupon. The second application was
taken to be only continuation of earlier
application. Vide paragraph 10, the Court
held thus;

"10. In this case, as we have
pointed out, the parties are substantially the
same in both the proceedings, and the
decree-holders are only proceeding against
properties
included
in
the
previous
application. It cannot, therefore, be treated
as a fresh application within the meantime
of Section 48 of the Code. It is only an
application to continue EP No.13 of 1939
which is pending on the file of the executing
court."

40. In view of above, I do not find any
error in the order passed by the executing
court rejecting the objection of State
respondents,
the
opposite
parties
in
Execution Case No.70 of 2010 while the
earlier execution application had remained
pending. Thus, point no.(iii) is decided in
favour of the respondents.

41. As far as the point no.(iv) for
consideration is concerned, it is to be seen
whether for execution of a decree for
perpetual injunction, a restoration of
possession could have been ordered or not.
Order 21 Rule 32 C.P.C. is reproduced
hereinunder:

"32.
Decree
for
specific
performance for restitution of conjugal
rights, or for an injunction.

(1) Where the party against whom
a decree for the specific performance of a
contract, or for restitution of conjugal
rights, or for an injunction, has been passed,
has had an opportunity of obeying the
decree and has wilfully failed to obey it, the
decree may be enforced in the case of a
decree for restitution of conjugal rights by
372 INDIAN LAW REPORTS ALLAHABAD SERIES
the attachment of his property or, in the case
of a decree for the specific performance of a
contract or for an injunction by his detention
in the civil prison, or by the attachment of
his
property,
or
by
both.

(2) Where the party against whom
a decree for specific performance or for an
injunctions been passed is a corporation, the
decree may be enforced by the attachment of
the property of the corporation or, with the
leave of the Court by the detention in the
civil prison of the directors or other
principal officers thereof, or by both
attachment and detention.

(3) Where any attachment under
sub-rule (1) or sub-rule (2) has remained in
force for six months if the judgment-debtor
has not obeyed the decree and the decreeholder has applied to have the attached
property sold, such property may be sold;
and out of the proceeds the Court may
award
to
the
decree-holder
such
compensation s it thinks fit, and shall pay the
balance (if any) to the judgment-debtor on
his application.

(4) Where the judgment-debtor
has obeyed the decree and paid all costs of
executing the same which he is bound to pay,
or here, at the end of six months from the
date of the attachment, no application to
have the property sold has been made, or if
made has been refused, the attachment shall
cease.

(5) Where a decree for the
specific performance of a contract or for
an injunction has not been obeyed, the
Court may, in lieu of or in addition to all
or any of the processes aforesaid, direct
that the act required to be done may be
done so far as practicable by the decreeholder or some other person appointed by
the Court, at the cost of the judgmentdebtor, and upon the act being done the
expenses incurred may be ascertained in
such manner as the Court may direct and
may be recovered as if they were included
in the decree.

[Explanation: For the removal
of doubts, it is hereby declared that the
expression "the act required to be done"
covers prohibitory as well as mandatory
injunctions.]"

42. From the bare reading of sub-rule
(1) of Rule 32, it is absolutely clear that a
decree for an injunction is enforceable and
for enforcing the same, vide sub-rule (2)
of Rule 2 property can be attached. Even
for satisfaction of decree, it can be sold
out. Sub-rule (5) empowers the executing
court to direct an act required to be done
may be done, as far as the practicable. The
explanation attached to the sub-Rule (5)
states that the expression 'act required to
be done' covers prohibitory as well as
mandatory injunction.

43. In my considered view, the
legislature has very consciously and rightly
so in its wisdom empowered the executing
court to get the performance of decree
achieved, whatever manner it is feasible and
possible.
The
intendment
behind
incorporation of sub-Rule (5) and the
explanation attached to it is that even in the
case of prohibitory or mandatory injunction,
the Court has to ensure full satisfaction of
the decree. In other words, the court has to
ensure a decree does not go to waste.