EVURU VENKATA SUBBAYYA Vs. SRISHTI VEERAYYA AND OTHERS
LAWS(APH)-1964-9-35
HIGH COURT OF ANDHRA PRADESH
Decided on September 30,1964

EVURU VENKATA SUBBAYYA Appellant
VERSUS
Srishti Veerayya And Others Respondents


Referred Judgements :-

F. H. HOLLOWAY V. MAHOMED ALI [REFERRED TO]
BHOOBUN MOHUN MUNDUL V. NOBIN CHUNDER [REFERRED TO]
DOORGA LALL V. LALLA HULWANT SAHOY [REFERRED TO]
KELU MANIKARAM V. PARAYANAN [REFERRED TO]
SAMPATH CHETTY V. SANKARA IYER [REFERRED TO]
VENKATACHALAM V. RAMASWAMY [REFERRED TO]
AJABRAO DOMAJEE V. ATMARAM SADASHEORAO [REFERRED TO]
KODIA GOUNDER V. VELANDI GOUNDAR [REFERRED TO]
MURARI LAL V. NAWAL KISHORE [REFERRED TO]
STATE OF PUNJAB VS. NATHURAM [REFERRED TO]
UNION OF INDIA VS. RAM BOHRA [REFERRED TO]
CHIRANJI LAL VS. BEHARI [REFERRED TO]
RAMAYYA VS. SUBBAIAH [REFERRED TO]
NARI CHINNABBA CHETTY VS. E CHENGALROYA CHETTY [REFERRED TO]
HEM CHANDRA NASKAR VS. NARENDRA NATH BOSE [REFERRED TO]
SACHI PRASAD MUKHERJEE VS. AMARNATH ROY CHOWDHURI [REFERRED TO]
ANGAD VS. MADHO RAM [REFERRED TO]
GOSWAMI GORDHAN LALJI VS. GOSWAMI MAKSUDAN BALLABH [REFERRED TO]
TOON LAL VS. SONOO LALL [REFERRED TO]


JUDGEMENT

P.JAGANMOHAN REDDY, J. - (1.)This Letters Patent Appeal, filed on the grant of leave by our learned brother Kumarayya, J., involves the determination of the true scope and ambit of clause (5) of Rule 32 of Order 21 and Section 51 (e), Civil Procedure Code.
(2.)The brief facts which give rise to the question posed before us are as follows: The tank in the shrotriem village of Annasamudram, of which the respondents are the shrotriemdars, was in a state of disrepair and disuse for several years past. The bund had breaches and the source of the tank, "Gadi Vagu" would empty itself through two wide sluices. Because of these breaches water could not be trapped and it was not possible to have wet cultivation. The appellant who was the 1st plaintiff, and 4 others, plaintiffs 2 to 5, took on lease from the respondents the tank bed area and cultivated Virginia tobacco, which does not require much water. In the lease deed it was stated that the "lessees would be at liberty to let out water in tank bed area through sluices marked A and B in the plan attached to the plaint, which are no other than the two sluices through which the Gadi Vagu used to empty itself. Thereafter the plaintiffs expended moneys and prepared the land fit for cultivation. But the villagers started interfering with its cultivation by raising large earthern bunds at the sluices A and B and trapping water, which made it impossible for the plaintiffs to cultivate tobacco. The plaintiffs took proceedings under Section 144, Criminal Procedure Code and though they were successful to a certain extent, they could not get a permanent remedy, inasmuch as the two sluices had already been blocked by the earthern bunds. The plaintiffs thereafter filed a suit, O. S. No, 79/55, for the issue of a perpetual and a mandatory injunction, in the Court of the Subordinate Judge, Kurnool, against the respondents herein in a representative capacity, under Order 1, Rule 8, C. P. C. as representing the entire body of villagers both of Patha Annasamudram and Kotha Annasamudram. The suit was eventually decreed on 16-1-1957. It may be stated that from Paragraph 4 of the Judgment of the Subordinate Judge, it would appear that as a consequence of injunction orders passed in I. A. No. 675/55 Respondents 1 to 3 i.e., defendants 1 to 3 in the suit who are the elders of the two villages, had removed the bund which they had put up in the lands. But notwithstanding the fact that there was no bund at the time of the passing of the decree in O. S. No. 79/55 on 16-1-1957, there were mandatory directions given under that decree, the executability of which is now the subject matter of this appeal. The terms of the decree passed on 16-1-1957 are as below.
"1. That the defendants and other villagers of Patha and Kotha Annasamudrams be and hereby are restricted by means of a permanent injunction from interfering with the plaintiff's enjoyment of the schedule mentioned properties;

2. That the defendants and the villagers of Patha and Kotha Annasamudrams be and hereby are directed by means of a mandatory injunction to remove the eartnern bunds put up by them in the north and southern sluices marked A and B in the plaint plan attached hereto;

3. That in default of the defendants and others (set out in clause (2) supra) removing the sluices directed as per clause (2) above, the plaintiffs shall be entitled to get the said sluices removed through Court at the expense of the defendants and the said villagers."
After the passing of the decree, no steps were taken to execute it, but later, as some disputes arose between the respondents and the plaintiffs in respect of the lease, the respondents filed a suit, O. S. No. 68/60 in the Court of the District Munsif, Markapur, for an injunction against the appellant herein and 4 others (plaintiffs in O. Section 79/55). By a separate application, they prayed for a temporary injunction restraining the appellant and others (plaintiffs in O. Section 79/55) from interfering with the rights of the respondents to till up a 15 yards-long channel at the points R. S. in the plan filed by them along with the plaint. The appellant contended that the respondents in the guise of closing the channel at R S built up a fresh bund 4 feet in height and obstructed a sluice marked A in the plan attached to the decree in O. S. No. 79/ 55. Then the appellant and others (plaintiff-decree-holders in O. Section 79/55) sought to execute the decree in O. S. No. 79/55, alleging that the Respondents had violated the injunction order in that suit, by raising the bund. They contended that unless the rain water is drained through the sluice A, the tobacco crop raised in the land will be completely spoiled. Accordingly, they filed E. P. 56/60 seeking enforcement of their decree in O. S. No. 79/55 and for detention of the respondents in civil prison, and another petition, E. A. 94/60 to appoint a Commissioner to remove the bund at R. S. The Respondents raised several objections to the executability of the decree, on the grounds firstly, that they were parties to the suit nor can they be deemed to be in any way represented by the Defendants in O. S. No. 79/55; secondly, that the judgment in O. S. No. 79/55 was passed on merits after contest, and so it cannot bind those who have been expressly impleaded in the suit; and thirdly, that the decree in O. S. No. 79/55 being a decree for injunction, cannot be enforced personally against the respondents who are eo nomine parties to the suit. Both the executing Court as well as the first appellate court rejected the first two objections. But in respect of the third objection, they held, in view of a Full Bench decision of the Madras High Court in Kodia Gounder v. Velandi Goundar, A.I.R. 1955 Madras 281 (FB) that the respondents being eo nomine parties, the decree obtained by the appellant and other plaintiffs could be personally enforced against them and they could be committed to civil prison. The executing Court however granted the prayer of the appellant which was upheld in appeal namely that a Commissioner be appointed for removing the bund R. S. under the terms of sub-clause (5) of Order 21, Rule 32, C. P. C. which provision, according to them, is wide enough to cover both a mandatory and a prohibitory injunction. Our learned brother Kumarayya J., reversed that finding, holding that sub-clause (5) of Rule 32 of Order 21, will apply to cases of prohibitory injunction, and though sub-rules (1) and (2) of Rule 32 of Order 21 apply to both classes of injunction, the decree could be personally enforced against the respondents and consequently the only remedy of the appellant is by way of a suit on a fresh cause of action for a mandatory injunction. Our learned brother further considered the applicability of Section 51 (e) C. P. C. and came to the conclusion that the provision also does assist the appellant, inasmuch as when a prohibitory injunction was disobeyed, it is within the competence of the executing Court to substitute therefor a mandatory injunction of a suitable character even under his inherent powers and to give effect thereto. In this view, he reversed the judgment of the Courts below and allowed the appeal.
(3.)Mr. Suryanarayana for the appellant contends that Order 21, Rule 32 (5) applies both to prohibitory as well as mandatory injunctions and could be enforced personally against persons who are eo nomine parties in a representative suit. It is further urged that the appeal before Kumarayya, J., was competent inasmuch as the decree being a joint decree and respondents 2 and 4 before him having been served, the appeal was dismissed as against them on 18-9-1962, as such no appeal can be maintained against the rest of the respondents, which would result in a conflict of decrees. In support of this last contention, he has cited the decisions in State of Punjab v. Nathu Ram, A.I.R. 1962 Supreme Court 89; Ram Sarup v. Munshi, A.I.R. 1963 Supreme Court 553 and Union of India v. Shree Ram, A.I.R. 1965 Supreme Court 1531. Mr. Venkatarama Sastry, on the other hand, contends that before Kumarayya, J., objection was taken and that the decisions of the Supreme Court relied upon are inapplicable to appeals against decrees in execution where the principles of abatement do apply. If any of the judgment-debtors die served, he contends, the execution petition will be dismissed and there would be no bar to a fresh execution petition. In any case a reading of Order 22, Rules 11 and 12 would show that the provisions of that order do apply to execution proceedings and are only confined to suits and appeals against decrees in those suits. Rule 3 of Order 22 which deals with the procedure where one of several plaintiffs or defendants dies and Rule 4 which deals with the procedure in case of death of one of several defendants or of sole defendant, and Rule 8 which says that plaintiff's insolvency bars the suit, have been specifically excluded by Rule 12 from their application to proceedings in execution of a decree or order When Rule 11 states that in the application of Order 22 to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal, it also necessarily excludes the operation of the order to execution proceedings.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.