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It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives, the bench said. The Supreme Court in Prabhakara Adiga vs. Gowri , has held that a decree for injunction can also be executed against legal representatives of the deceased judgment-debtor, in view of the specific provisions contained in section 50 of the Code of Civil Procedure.
A bench comprising Justice Arun Mishra and Justice Amitava Roy observed that when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives, the bench said.
The bench set aside a Karnataka High Court judgment which had held that the decree for permanent injunction cannot be enforced against the legal heirs of judgment-debtor, as injunction does not travel with land. The bench noted that the maxim “ actio personalis moritur cum persona ” is limited to certain class of cases as indicated in Girijanandini Devi v. Bijendra Narain Choudhar , wherein it was observed that the said principle operates in a limited class of actions, such as actions for damages, assault or other personal injuries not causing the death of the party and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.
“ Legal representatives of decree holder can execute decree for permanent injunction relating to property or right which is heritable and partible. When such is the situation, in our opinion, it would be open to decree holder to execute decree against successor of interest of judgment-debtor also ,” the bench said.
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