THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CIVIL REVISION PETITION No. 176 OF 2023
ORDER:
Challenge by the judgment debtor in this revision is the order dated 19.12.2022 made in E.A. No. 01 of 2022 in E.P. No. 2 of 2022 on the file of the Junior Civil Judge, Kodangal. By the impugned order, the learned executing Court allowed the application filed by the decree holder seeking grant of police aid for implementation of orders of permanent injunction in O.S. No. 27 of 2013 pending the execution proceedings.
The learned counsel for the petitioner-judgment debtor contends that for due execution of injunction decree, there is a specific remedy as provided under Order XXI Rule 32 C.P.C. and as the very E.P. is filed for execution of decree passed in O.S. No. 27 of 2013, the learned executing Court ought not to have passed the impugned order. It is further contended that if the petitioner is said to have disobeyed the judgment and decree obtained by the respondent in the suit, the remedy of the respondent is to take recourse to the provisions of Order XXI Rule 32 CPC and not by way of an application under Section 151 CPC seeking police protection. He submits that unless and until the parties are given opportunity to adduce evidence, as provided under Order XXI Rule 32 CPC, the executing Court could not have allowed the application filed by the respondent 2 under Section 151 CPC. In support of his contention, the learned counsel placed reliance on a decision rendered by a learned Division Bench of this court in Saadullah Hussaini v. Mohammed Khaja Qutubuddin1.
On the other hand, the learned counsel representing the respondent-decree holder has sought to sustain the impugned order contending that the executing Court has got ample powers under Section 151 of C.P.C. to grant interim police aid for due implementation of the injunction orders and prayed for dismissal of the revision petition.
Heard learned counsel for the petitioner and the learned counsel for the respondent at length. Perused the material available on record.
As seen from the record, the respondent herein filed a suit in O.S. No. 27 of 2013 against the revision petitioner seeking perpetual injunction in respect of the suit schedule land on the file of the Junior Civil Judge at Kodangal. On contest, the said suit came to be decreed on 04.11.2020. Having suffered the decree, the revision petitioner challenged the judgment before the lower appellate court. It is also brought on record that no order of stay or suspension of operation of the judgment of the trial Court was passed in the appeal. In the meanwhile, the respondent filed execution proceedings seeking implementation 1 2022(3) ALD(DB) 286 3 of the decree made in O.S. No. 27 of 2013. Pending the execution proceedings, he has filed the impugned application Under Section 151 of C.P.C. seeking police aid for implementation of permanent injunction orders which came to be allowed by the impugned order.
Merely because an application for police protection was filed under Section 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the Court to reject it and hold that the application should have been filed under Order XXI Rule 32 CPC. The Court need not wait till the injunction is breached. In a fit case, the Court can undoubtedly direct police aid as a preventive measure. This power though not expressly conferred, is a power incidental or ancillary to the exercise of the power to grant injunction pending the suit/execution proceedings. The decision relied upon by the learned counsel for the petitioner in Saadullah Hussaini (supra) is not applicable to the facts of the case on hand. Dealing with similar issue, this Court in Bijiga Papa Rao & Others v. Jonnalagadda Srinivasa Rao2 at para 9 held as under:-
"If the police authorities are under a legal duty to enforce the law and the Public or the citizens are entitled to seek directions under Article 226 of the Constitution for discharge of such duties by the Police Authorities we feel that the civil courts can also give appropriate directions under Section 151 Civil P. C. to render aid to the aggrieved parties for the due and proper implementation of the orders of Court. It cannot be said 2 2015(2) ALT 63 4 that in such a case the exercise of the inherent power under Section 151, Civil P. C. is devoid of jurisdiction. There is no express provision in the Code prohibiting the exercise of such a power and the Court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for enforcement of the Court's order in a lawful manner."
The Apex Court in Raja Venkateswarlu v. Mada Venkata Subbaiah3 at para No. 3 observed as under:-
"3. But merely because an application for police protection was filed only under Section 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the High Court to reject it and hold that the application should have been filed under Order 21 Rule 32 CPC. The crucial question is whether the executing court has jurisdiction. That is not disputed. The only thing is that an exact provision was not invoked. That by itself shall not be a reason for rejecting the application. ...In case the executing court has the jurisdiction and has otherwise followed the procedure under the Rules, the action has to be upheld...."
In view of the above settled legal position, this Court is of the view that there is no illegality or infirmity in the impugned order passed by the executing court in allowing the E.A. by granting police aid. The revision lacks merit and the same is liable to be dismissed.
Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
Pending Miscellaneous Applications shall stand closed.
________________________ M.G. PRIYADARSINI, J 21.02.2023 tsr 3 (2017) 15 SCC 659 5 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI CIVIL REVISION PETITION No. 176 OF 2023 DATE: 21-02-2023