HON'BLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION No.27978 of 2023
ORDER:
This writ petition is filed by the petitioner seeking to declare the inaction on the part of respondent Nos.2 to 4 in providing police aid to the persons and property i.e., Plot No.144 admeasuring 200 square yards, Plot No.153 admeasuring 260 square yards and Plot No.154 admeasuring 260 square yards in Sy.Nos.806/AA1, 806/AA, 806/AA3, 806/AA4, 806/E1, 806/E2 and 806/EE situated at Ganganagar Village, Jadcherla Mandal, Mahaboobnagar District, protecting from the unknown persons in pursuance of the judgment and decree dated 15.11.2022 in O.S.No.40 of 2021 on the file of the Principal Junior Civil Judge, Jadcherla, Mahaboobnagar District, as illegal and arbitrary and for other reliefs.
2. Heard the learned counsel for both sides and perused the record.
3. It is the case of the petitioner that she is the owner and possessor of Plot No.144 admeasuring 200 square yards, Plot No.153 admeasuring 260 square yards and Plot No.154 admeasuring 260 square yards in Sy.Nos.806/AA1, 806/AA, 2 806/AA3, 806/AA4, 806/E1, 806/E2 and 806/EE situated at Ganganagar Village, Jadcherla Mandal, Mahaboobnagar District, having purchased the same under registered sale deeds bearing document Nos.2642 of 2009, 3460 of 2012 and 3459 of 2012, dated 27.04.2009, 16.05.2012 and 16.05.2012 respectively. It is the further case of the petitioner that one Syed Ismail, made attempts to interfere with her peaceful possession and enjoyment over the subject property, she was constrained to institute a suit vide O.S.No.40 of 2021 on the file of the Principal Junior Civil Judge, Jadcherla, Mahaboobnagar District and the said suit was decreed vide Judgment and Decree, dated 15.11.2022.
4. The learned counsel appearing for the petitioner has vehemently contended that even after passing of the judgment and decree in O.S.No.40 of 2021, some unknown persona are interfering with the possession of the petitioner, which necessitated the petitioner to approach the police seeking police aid for implementation of the judgment and decree passed in O.S.No.40 of 2021.
5. Per contra, the learned Assistant Government Pleader for Home appearing for the respondents has submitted that except approaching the police, the petitioner has not obtained any 3 orders either from the Court of the Principal Junior Civil Judge which has passed the judgment and decree in O.S.No.40 of 2021 or from this Court granting police protection. Since there was no specific direction from the competent civil Court, the respondents-police have not acted upon the representation submitted by the petitioner.
6. In Kanwar Singh Saini vs. High Court of Delhi 1, the Hon'ble Apex Court observed as follows:
"17. Application under Order 39 Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one that is granted by the court under Order 39 Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically.
18. In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2- A 1 (2012) 4 SCC 307 4 CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree."
7. In Raja Venkateswarlu and another vs. Mada Venkata Subbaiah and another 2, the Hon'ble Apex Court while dealing with the similar issue, upheld the orders passed by the Executing Court granting police protection under Section 151 of C.P.C for implementation of injunction decree stating that it is not necessary that the person seeking police protection must file an application only under Order XXI Rule 32 of CPC.
8. When any temporary injunction granted under Order XXXIX Rule 1 and 2 of CPC during the pendency of the suit, the remedy available to the injunction holder is to invoke the 2 (2017) 15 Supreme Court Cases 659 5 provisions of Order XXXIX Rule 2A of CPC. Once the suit has been decreed, the party has to seek execution of the decree by filing an application under Order XXI Rule 32 of CPC, which applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Execution of an injunction decree is to be made in pursuance of Order XXI Rule 32 of CPC, as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible in law. If the Execution Court while entertaining an application filed by the party, refused to grant any relief sought therein either for implementation of the decree or for providing necessary police aid, at that stage, the party may approach the High Court and seek police protection for implementation of the orders granted by the Civil Court. Under the guise of seeking a writ of mandamus, no person can make the Court a forum for adjudicating the civil rights. While exercising the jurisdiction under Article 226 of the Constitution of India, the High Court would not, collaterally, determine disputed questions of fact.
9. In the instant case, the petitioner has filed the present writ petition seeking to implement the judgment and decree, 6 dated 15.11.2022 passed in O.S.No.40 of 2021 by the learned Principal Junior Civil Judge, Jadcherla, Mahaboobnagar District, without invoking the provisions of Order XXI Rule 32 of C.P.C. In the affidavit filed accompanying the writ petition, the petitioner has stated that some unknown persons are interfering with the possession of the petitioner. The prayer of the petitioner is to direct respondent Nos.2 to 4 to provide police protection. While police officers are no doubt obligated to assist in implementation of orders of Court, any bonafide dispute regarding the scope and purport of the order, would require them to exercise restraint and leave it to the party, which seeks police assistance, to approach the Court and obtain necessary directions/orders in this regard.
10. Be that as it may, the petitioner is having remedy to invoke Order XXI Rule 32 of CPC read with Sections 94 and 151 of CPC. If the competent Civil Court fails to grant police aid, then the writ petition filed under Article 226 of the Constitution of India would remain effective in appropriate situations. The relief of police protection may be granted in a situation where an application is filed by the person obtaining injunction alleging that there is a threat of breach, disobedience or violation of order of injunction, subject to proof. When a petition is filed 7 seeking police protection, such order cannot be passed in a routine manner and a high degree of proof is necessary. A party, who obtained temporary injunction order or perpetual injunction decree, and is complaining of violation of such orders, may file not only an application under Order XXXIX Rule 2A CPC seeking attachment and/or arrest of the violator for Contempt of Court or an execution petition under Order XXI Rule 32 CPC, as the case may be, but also an application seeking Police protection under Section 151 CPC from the competent Civil Court. In the present case, since there is a specific remedy available under Order XXI Rule 32 of CPC, the petitioner has to avail such remedy, if he feels that unofficial respondents are obstructing him from enjoying the fruits of the decree or if there is any disobedience or breach of the judgment and decree.
11. In view of the above remedy available to the petitioner, this Court is not inclined to grant the relief sought by the petitioner seeking police aid for implementation of the judgment and decree dated 15.11.2022 passed in O.S.No.40 of 2021 by the learned Principal Junior Civil Judge, Jadcherla, Mahaboobnagar District. However, the petitioner is at liberty to file an appropriate application before the competent Civil Court, 8 in accordance with law. If such application is filed, the learned Principal Junior Civil Judge, Jadcherla, shall dispose of the same, in accordance with law, as expeditiously as possible, preferably, within a period of two (2) months from the date of filing of such application.
12. With the above observations, this Writ Petition is disposed of. No costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed _________________________________ JUSTICE C.V. BHASKAR REDDY 09.10.2023 gkv