The Karnataka High Court allowed a writ petition filed under Article 227 of the Constitution of India, praying to quash the order dated 03.04.2021 passed on an application filed under section 151 of CPC in OS No.167 of 2010 on the file of Civil Judge and JMFC. The Court observed that if the respondent/defendant had obtained an interim order or the interim order was in his favor, then he could have sought police protection to implement the said interim order of injunction.
Brief Facts:
The suit of the petitioners/plaintiffs is for possession. The respondent/defendant filed a written statement and thereafter, the respondent/defendant filed an application under section 151 of CPC requesting the Court to direct PSI of Chitageri to protect the possession and enjoyment of the defendant by providing police assistance. The defendant had filed a suit against the plaintiffs for specific performance of the contract and also for perpetual injunction in respect of the suit schedule property. The said suit was decreed on 24.07.1983. As against the said decree, petitioners/plaintiffs filed R.A.No.4/2009 which was partly allowed, setting aside the relief of specific performance and confirming the perpetual injunction granted by the trial Court. RSA No.406/2010 filed by respondent/defendant is pending before this Court.
Contentions of the Petitioner:
The Learned Counsel for the Petitioners submitted that no Police assistance could be sought to implement the decree passed in the suit, but it is open for the respondent/defendant to file execution to execute the decree passed in the suit. He further contended that since there is no interim order in the present suit, the application filed by the respondent/defendant under Section 151 of CPC seeking police protection would not be maintainable.
The Court observed that the trial Court committed an error in allowing the application filed under Section 151 of CPC by the respondent/defendant seeking police assistance to protect the defendant’s peaceful possession and enjoyment of the suit schedule property.
The Cout noted that Order XXI Rule 32 provides for the execution of a decree for an injunction. Sub-Rule (5) of Rule 32 of Order XXI of CPC provides for consequences when a decree for an injunction has not been obeyed. Without resorting to execution of the decree passed in the suit, the respondent/defendant could not have filed a petition under Section 151 of CPC based on the suit, seeking police help to protect his possession of the suit schedule property. If, in the present suit, the respondent/defendant had obtained an interim order or the interim order was in his favour, then he could have sought police protection to implement the said interim order of injunction.
The Court remarked that the observation of the trial Court that when there is an order of perpetual injunction with respect to suit schedule property, protection of the said property is required, cannot be disputed. But the said protection or enforcement of decree is to be initiated by the respondent/defendant under separate proceedings or based on the said decree for perpetual injunction, the respondent/defendant could have prayed for the grant of injunction in his favour in the present suit. Without there being any interim order in favour of the respondent/defendant, the application filed by the respondent/defendant under Section 151 of CPC seeking police assistance to protect his possession of the suit schedule property would not be maintainable.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the order dated 03.04.2021 on I.A.No.6 filed under Section 151 of CPC in O.S.No.167/2010 on the file of the Civil Judge and JMFC, is set aside and I.A.No.6 is dismissed.
Case Title: H. Dyamanagouda & Ors. v Patil Eshwara Gowda
Coram: Hon’ble Justice S. G. Pandit
Case no.: WRIT PETITION NO. 8413 OF 2021 (GM-CPC)
Advocate for the Petitioner: Mr. Yadunandan N
Advocate for the Respondents: Mr. Mahesh R Uppin
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