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Judgment
This is an appeal against the order of the lower Appellate ""Court setting aside a portion of the order of the Court of the first instance. The lower
Appellate Court disallowed execution of the decree so far as injunction against the judgment-debtor was concerned, on the ground that the
property to which the right of easement was attached had been subsequently transferred by the decree-holder to a third person. The transferee has
not appeared and is not on the record of the case nor has he applied for permission to execute the decree. So far as the record goes, the
judgment-creditor is the decree-holder and is, therefore, prima facie entitled to execute the decree. It may be that the land having been sold, the
decree-holder is not entitled to enjoyment of the easement, but that is a question which it is not competent for a Court executing the decree to deal
with in the circumstances of this case. It was bound to allow execution at the instance of the decree-holder as there was no other person who had
the right to execute the decree.
The ruling reported as Ram Sahai v. Gaya (1884) A.W.N. 224 is very much to the point. There the decree-holder had sold the property which
gave rise to a right of pre-emption, and the contention was raised that the property having been sold, the decree could not be executed at the
instance of the decree-holder. That contention was disallowed on the ground, that the executing Court was bound to recognise the decree-holder
on record. There are a number of other decisions which follow the principle laid down there. See Jagat Tarini Dasi v. Rakhal Chandra Tewary 14
C.W.N. 752, Jasoda Deye v. Kirtibash Das 18 C.K 639, Hansraj Pal v. Mukhraji Kunwar (1907) A.W.N. 280 . The appeal should be allowed.
The lower Appellate Court''s order is, therefore, set aside and the District Munsif''s order restored. The respondent must pay the costs of the
appellant in this and the lower Appellate Court.