High Court of KeralaSingle Judge2017-07-28Disposed of

Shibu K.B. v. Babu Joseph & Others

Case / Petition Number:OP(C).No. 1887 of 2017 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2017-07-28
Court Decision / Holding: The Original Petition is disposed of as above. The court found no legal infirmity in the impugned order and permitted the petitioner to close down the business within one month from today. If legally entitled, the petitioner may seek appropriate remedies. The decree operates against the land, and the petitioner, having acquired title after the compromise, cannot challenge the decree’s binding effect at this stage.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

SHIBU K.B.

Respondents

BABU JOSEPH
JOHNY
WILSON
CHALAKUDY MUNICIPALITY
KERALA STATE HOUSING BOARD
SHAJU P.K.
SURENDRAN

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.P. Dandapani (Sr.)
• Sri Millu Dandapani

Counsels for Respondents

• Sri T.N. Manoj
• Sri M.P. Ashok Kumar
• Sri Manoj Ramaswamy, SC, Kerala State Housing Board

Case Synopsis & Summary

The petitioner, Shibu K.B., is the fifth judgment debtor in EP No.185/2016 in OS No.275/2009 before the Munsiff Court, Chalakudy. The suit, initiated by the first two respondents as decree holders under Order 1 Rule 8 CPC, prayed for a permanent prohibitory injunction restraining the defendants from conducting any commercial activity on the plaint schedule property. During the pendency, the suit was referred to mediation, resulting in Ext.P2, a compromise decree whereby the first defendant agreed to suffer the decree and to be exonerated from paying costs. The property subsequently came to the petitioner through assignment from the first defendant. The respondents filed Ext.P3 execution petition alleging violation of the injunction. The petitioner challenged the execution on multiple grounds, arguing that the sale deed carried no restrictions on use, and that any restriction (if at all) would be reflected in the agreement of assignment rather than title documents. The court noted disputes of fact regarding restrictions reflected in the Housing Board’s schemes and decrees, and held that the core question about restrictions cannot be resolved in this proceeding. It relied on the principle that an injunction decree may run with the land (Chothy Theyyathan v. John Thomas) and stated that the petitioner cannot challenge the decree’s operation against the land since he is not a party to the original suit. Ultimately, the court found no legal infirmity in the impugned order and permitted the petitioner to close the business within one month, with a caveat for possible remedies if entitled.

Provisions of Law Cited

Order 1 Rule 8 CPCOrder XXI, Rule 32 CPCOrder XXI, Rule 10 and 11 CPCSection 47 CPC

Legal Doctrines & Maxims

Injunction decree may run with the land (binding principle)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that at the time of assignment there was no express restriction in the sale deed regarding the manner of enjoyment of the property. He asserts that the Housing Board’s restrictions, if any, are not reflected in the title documents and that Ext.P2 (the compromise) shows the assignor agreed to suffer the decree; he argues that the decree cannot be executed against him without clear legal basis, and that the issues of restrictions and enforceability should be examined, possibly under Section 47 CPC; he also notes that the petitioner was not a party to the writ petition or the writ appeal and that the assignor’s wife’s earlier pleadings cannot bind him. He seeks appropriate reliefs and maintains his long-standing medical shop operation while the dispute is resolved.

Contentions of Respondents

The respondents submitted that Ext.P2 is a compromise decree in which the defendant agreed to suffer the decree, and that injunctions can bind the land and be enforced against subsequent transferees. They argued that restrictions on commercial use are reflected in the Housing Board’s schemes and agreements to assign; therefore, enforcing the decree against the current owner is valid. They contended that the title deeds, the agreement to assign, and the housing scheme restrict commercial activity, and that the petitioner, as a successor, is bound by the decree and should obey it until any lawful remedy is pursued. They relied on precedents such as Chothy Theyyathan to assert the operating of the decree against the land, and urged dismissal of any challenge to execution.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Chothy Theyyathan v. John Thomas	1997 (1) KLT 464	Positive	Held binding pronouncements that injunction decrees may run with the land; cited to support the proposition that the decree in question operates on the property and binds successors.
W.A.No.205 of 2010	W.A.No.205 of 2010	Mentioned Only	Cited by respondents to support a particular line of argument, but the judgment does not treat it as controlling or distinguish it; it is mentioned in the context of prior related submissions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 28TH DAY OF JULY 2017/6TH SRAVANA, 1939** **OP(C).No. 1887 of 2017 (O) ---------------------------** **ORDER DATED 13.6.2017 IN EP NO.185/2016 IN OS NO.275 OF 2009 ON THE FILES OF MUNSIFF COURT, CHALAKUDY** ## **PETITIONER/5TH JUDGMENT DEBTOR:** **-------------------------------** **SHIBU K.B, AGED 44 YEARS S/O.KATTUNGA BHASKARAN, KINNAPPILLY DESOM, MELOOR VILLAGE, CHALAKUDY TALUK.** **BY ADVS.SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/DECREE HOLDERS 1 & 2 AND JUDGMENT DEBTORS 1 TO 4 & 6:** **------------------------------------------------------------------** ## **1. BABU JOSEPH** - **AGED 53 YEARS, S/O.PUTHANANGADI JOSEPH, NEAR LIONS HOUSE, KIZHAKKE CHALAKUDY VILLAGE, CHALAKUDY TALUK, 680 307.** ## **2. JOHNY, AGED 66 YEARS** - **S/O.KATTALAN PAILAN, NEAR CHALAKUDY GOVERNMENT HOSPITAL, SNEHA NAGAR DESOM, KIZHAKKE CHALAKUDY VILLAGE, CHALAKUDY TALUK, 680 307.** ## **3. WILSON** - **AGED 53 YEARS, PARAKKA NJARLELY VEETIL, KAROOR DESOM, ALOOR VILLAGE, CHALAKUDY TALUK, 680 307.** ## **4. CHALAKUDY MUNICIPALITY** - **REPRESENTED BY ITS SECRETARY, CHALAKUDY 680 307.** **5. KERALA STATE HOUSING BOARD** - **REPRESENTED BY ITS EXECUTIVE ENGINEER, THRISSUR DIVISION, THRISSUR 680 001.** ## **6. SHAJU P.K.** - **S/O.PANTHALLOOKKARAN KOCHUMATHU KALLETUMKARA DESOM, ALOOR VILLAGE, CHALAKUDY TALUK, 680 307.** **OP(C).No. 1887 of 2017 (O) ---------------------------** **2** **7. SURENDRAN** **S/O.PUTHENPURAKKAL CHENNAN, MOOZHIKKADAVU DESOM, MELOOR VILLAGE, CHALAKUDY TALUK, 680 307.** **R1-R2 BY ADV. SRI.T.N.MANOJ R4 BY ADV. SRI.M.P.ASHOK KUMAR R5 BY ADV. SRI.MANOJ RAMASWAMY, SC, KERALA STATE HOUSING BOARD** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1887 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 COPY OF JUDGMENT DATED 30/10/2010 IN OS NO.275/2009 ON THE FILES OF MUNSIFF COURT, CHALAKUDY EXHIBIT P2 COPY OF AGREEMENT REACHED IN THE MEDIATION CENTRE ALONG WITH THE DECREE THEREIN IN AS. NO.114/2011, DATED 14/10/2014** **EXHIBIT P3 COPY OF THE PETITION FOR EXECUTION FILED UNDER ORDER XXI, RULE 10 AND 11** **EXHIBIT P4 COPY OF OBJECTION DATED 19/12/2016 FILED BY THE PETITIONER IN E.P NO.185/2016 IN OS NO.275/2009 EXHIBIT P5 COPY OF PETITION IN E.A NO.166 OF 2016 IN E.P NO.185/2016 IN OS NO.275/2009** **EXHIBIT P6 COPY OF ORDER DATED 9/7/2013 IN E.A NO.12/2012 IN E.P NO.32/2012 IN OS NO.275/2009 EXHIBIT P7 PHOTOCOPY OF PETITION DATED 3/3/2017 EXHIBIT P8 PHOTOCOPY OF OBJECTION DATED 6/3/2017 FILED BY THE PETITIONER** **EXHIBIT P9 COPY OF ORDER DATED 10/4/201 IN E.A NO.92 OF 2017 IN E.P NO.185 OF 2016 IN OS NO.275/2009 EXHIBIT P10 COPY OF ORDER DATED 10/4/2017 IN E.A NO.145 OF 2016 IN E.P NO.185 OF 2016 IN OS NO.275/2009 EXHIBIT P11 COPY OF ORDER DATED 13/6/2017 IN E.P NO.185/2016 IN OS NO.275/2009 ON THE FILES OF MUNSIFF COURT, CHALAKUDY EXHIBIT P12 COPY OF COUNTER AFFIDAVIT DATED 7/8/2016 IN WPC NO.22054/2016** **RESPONDENT(S)' EXHIBITS: N I L** **-----------------------** **//TRUE COPY//** **PA TO JUDGE** ## **A. HARIPRASAD, J. ------------------------------O.P.(C).No.1887 of 2017 ---------------------------------------------Dated this the 28[th] day of July, 2017** ## **JUDGMENT** Petitioner is the 5[th] Judgment debtor in E.P.No.185 of 2016 in O.S.No.275 of 2009 pending before the Court of Munsiff, Chalakkudy. The 1[st] respondent and one Pradeep Kumar filed the above suit by invoking provisions under Order 1 Rule 8 CPC. Ext.P1 is the copy of the judgment in the suit. It can be seen from Ext.P1 that the prayer in the suit was one for permanent prohibitory injunction, restraining the defendants in the suit from conducting any commercial activity in the plaint schedule property. The 1[st] defendant in the suit filed an appeal against Ext.P1 judgment and Ext.P2 decree before the Court of Subordinate Judge, Irinjalakkuda as A.S.No.114 of 2011. Pending that appeal, the matter was referred for mediation. As per Ext.P2 mediation agreement, the appellant (1[st] defendant in the suit) and the respondents (plaintiffs) compromised the suit. Ext.P2 compromise and decree would reveal that the appellant (1[st] defendant in the suit) agreed to suffer the decree and he was **O.P.(C).No.1887/2017** **2** exonerated from the liability of paying cost. 2. Subsequently, the property was purchased by the present petitioner. Alleging that the injunction decree has been violated, the 1[st] respondent preferred Ext.P3 execution petition by invoking Order 21 Rule 32 CPC. The petitioner has been made a party to Ext.P3. In that matter, the court below passed Ext.P11 order, which is challenged in this proceedings. 3. Heard the learned counsel for the petitioner, respondents 1 & 2, Standing Counsel for the 4[th] respondent Municipality and Standing Counsel for the 5[th] respondent Housing Board. 4. Learned counsel for the petitioner contended that the court below did not appreciate the contentions raised by the petitioner. According to the learned counsel, the decree cannot be executed for many reasons. Firstly, at the time when he took assignment of the property from the 1[st] defendant in the suit, there was no restriction imposed in the sale deed regarding the manner in which the property should be enjoyed. According to the petitioner, even his assignor got the property assigned from the Housing Board without any restrictions in the manner of **O.P.(C).No.1887/2017** **3** enjoyment. This contention is denied by the learned counsel for respondents 1 and 2 by relying on a judgment of this Court in W.A.No.205 of 2010. Admittedly, in the writ petition and writ appeal, the petitioner was not a party. It is seen that the petitioner's assignor's wife approached the Division Bench against Chalakkudy Municipality and other respondents, complaining about refusal to grant a licence to run a medical shop in the premises. That writ appeal was dismissed by confirming the judgment of the learned Single Judge mainly on the contention raised by the Housing Board that allotment of buildings, plots, etc. under the scheme was for usage of the plot or building for residential purpose alone and they cannot be utilised for commercial purpose. 5. Learned counsel for the petitioner strongly contended that for the first time, the Board is taking such a stand which is not reflected in the title deeds given in favour of the parties. In answer to that contention, learned Standing Counsel for the Housing Board contended that such restrictions are reflected in the agreement to assign. However, that is a disputed question of fact which I do not deem fit to decide in this proceedings. **O.P.(C).No.1887/2017** **4** 6. As per Ext.P2 compromise, it is evident that the petitioner's assignor agreed to suffer the decree. The principle that injunction decree in certain cases may run with the land cannot be challenged in view of the binding pronouncements in **Chothy Theyyathan v. John Thomas [1997 (1) KLT 464]** and other decisions. Therefore, it may not be possible for the petitioner, who purchased the property from the 1[st] defendant in the suit after he compromised the suit, to legally contend that the decree will not operate against the property. The questions that could be taken up under Section 47 CPC also may not be available to the petitioner for the reason that the petitioner cannot be termed as a party to the suit, because his purchase was not a court sale. Therefore, the petitioner's grounds of challenge against the present order are very weak. The petitioner, if aggrieved by the order, may seek appropriate relief; but he should be obeying the decree as it runs with the land. 7. Learned counsel for the petitioner submitted that he is running a medical shop for long time and the contesting respondent is taking action against him on account of business revelry. Whatever that be, the petitioner's legal rights are **O.P.(C).No.1887/2017** **5** eclipsed by the decree in this proceedings because his predecessor in title has chosen to suffer the decree. Considering the facts and circumstances, I find no legal infirmity in the impugned order. However, the petitioner is permitted to close down the business within a further period of one month from today. If legally entitled, the petitioner can seek appropriate remedies. The Original Petition is disposed of as above. Sd/- **A. HARIPRASAD JUDGE** JV