Karnataka HC Sets Aside Bare-Injunction Decree After Defendant Died Before Judgment, Finding Suit Had Abated

H.S. Neminathaiah filed O.S. No. 1813/1992 against Smt. Pattammal and the Commissioner, seeking a permanent injunction.

The Trial Court decreed the suit on 30 July 2008.

M/s Varna Builders appealed under Section 96 CPC.

The High Court found that Pattammal had died while the suit was pending and before judgment was delivered.

The Court applied Order XXII CPC, under which a suit abates where the right to sue does not survive the death of a party, and the maxim actio personalis moritur cum persona.

It treated a bare injunction as a personal remedy, enforceable against the person subject to it and not one that runs with the land.

On that basis, the Court held that where the defendant dies before adjudication of a bare injunction suit, the right to sue ordinarily does not survive; a decree entered after abatement is a nullity.

The appeal was brought under Section 96 read with Order XLI Rule 1 CPC.

No precedent was cited.

The suit sought only a permanent injunction, which the Court characterized as personal to the defendant.

Because Pattammal died before the Trial Court delivered judgment, the Court concluded that the right to sue did not survive her death and the suit had abated under Order XXII CPC.

The Trial Court therefore lacked jurisdiction to enter the later decree, making it a nullity.

The appeal succeeded on that ground, not on the merits of the injunction claim.

It further declared any execution or enforcement of the decree null and void, directed the parties to bear their own costs, and held that pending interlocutory applications did not survive for consideration.