[Cites 6, Cited by 0]

Orissa High Court

Sayed Ekram Saha vs Haroon Khan & Others ...... Opp. Parties on 12 December, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                         C.M.P. No.140 of 2023

    (An application under Article 227 of the Constitution of India)
                                 ---------------

      Sayed Ekram Saha                             ......   Petitioner

                                           -Versus-

      Haroon Khan & Others                    ......        Opp. Parties


      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Petitioner      : Mr. P.K. Satapathy, Advocate

         For Opp. Parties : Mr. P.K. Khuntia, Advocate

         ___________________________________________
      CORAM:
                JUSTICE SASHIKANTA MISHRA
                            JUDGMENT

th 12 December, 2025 SASHIKANTA MISHRA, J.

The petitioner's prayer to provide police assistance

for implementation of the interim order having being

refused by the Trial Court, he has approached this Court

in the present application filed under Article 227 of the

Constitution of India.

2. Short facts of the case are that the petitioner is the

plaintiff in C.S. No.607 of 2021 in the Court of learned Civil

Judge, (Jr. Division), Bhadrak filed by him for partition and

permanent injunction claiming 1/3rd share of the suit

property. The plaintiff claims to be in possession of a

specific portion of the suit land occupied by him as per

mutual arrangement and convenience of the parties,

though the property has not yet been partitioned by metes

and bounds. For necessity, the plaintiff began constructing

a house. At the time of casting of the roof, the present

Opposite Party-defendant raised serious objection and did

not allow him to proceed with the construction and also

threatened to demolish the half-constructed building.

3. Since the efforts of the plaintiff for amicable

settlement and partition of the property did not yield any

result, he was constrained to file the suit. In view of the

impending threat of demolition of the half-constructed

house, the plaintiff also filed an application for injunction

being I.A. No.1 of 2022 in the suit under Order XXXIX

Rules 1 and 2 of CPC.

4. After hearing learned counsel for the parties, the trial

Court, by order dated 11.05.2022 allowed the application

by temporarily restraining the defendants from creating any

disturbance and permitted the plaintiff to construct the

house. The plaintiff thereafter, proceeded to cast the roof of

the house sanctioned under Pradhan Mantri Awas Yojana

(PMAY) as financial assistance had already been released in

his favour. But on 24.07.2022, the defendants created

serious disturbances and did not allow the plaintiff to raise

construction. The plaintiff approached the I.I.C., of Tihidi

Police Station seeking protection and implementation of the

order but the I.I.C., refused as no communication had been

made to it by the civil Court. Under such circumstances,

the plaintiff filed an application registered as CMA No.179

of 2022 under Section 151 of CPC, with prayer to direct the

I.I.C of Tihidi Police Station to render assistance to him at

the time of construction work and roof casting of the house.

Said application came to be rejected by order dated

16.12.2022, which is impugned. Be it noted that, being

aggrieved by the order of injunction passed against them,

the defendants have preferred an appeal being F.A.O. No.48

of 2022 before the learned District Judge, Bhadrak.

5. Heard Mr. P.K. Satapathy, learned counsel appearing

for the Plaintiff-Petitioner and Mr. P.K. Khuntia, learned

counsel appearing for the Defendant-Opposite Parties.

6. Mr. Satapathy would argue that the Court below

rejected the petition on untenable grounds without

appreciating the fact that the same runs contrary to the

spirit of the order of injunction already passed by it.

Further, the reasoning adopted by the Court below that

police assistance cannot be sought for to implement an

order of injunction, as it is an extreme step and can be

permitted only if the party does not have any remedy, is

completely erroneous. Mr. Satapathy also argues that the

provision Order XXXIX Rule 2-A of CPC is not a sufficient

remedy as even if an order is passed in favour of the

plaintiff under the said provision, it would be of no help to

him as the order of injunction would remain

unimplemented.

Mr. Satapathy has relied upon some judgments in

support of his contention, which shall be referred to and

discussed later.

7. Per contra, Mr. Khuntia would argue that if the

plaintiff is aggrieved by the alleged violation of the order of

injunction, he can file application under Order XXXIX Rule

2-A. The CPC nowhere provides for rendering of police help

for implementation of the order of the Court. It is an

extreme step which is not to be exercised by the Court

routinely.

8. Having heard learned counsel for the parties at length,

this Court deems it proper to first refer to the order passed

by the trial Court allowing the application for injunction,

the operative portion of which reads as follows:-

"The I.A. be and the same is allowed on contest against the Opposite Parties, but under the circumstances without any cost. Opposite Parties are temporarily restrained from creating any disturbances in the construction work of house standing over the suit land and petitioner is permitted to construct house over suit land of this I.A. subject to filing of specific undertaking to the effect that the petitioner will not change the nature and character of the suit land by making any other construction, petitioner will not claim any equity over the portion of suit land over which he is allowed to construct house in future and petitioner will not cause any inconvenience to other co-sharers."

9. It is significant to note that the aforesaid order was

passed on consideration of the fact that all the three

ingredients namely, prima facie case, balance of

convenience and irreparable loss, were found to be in

existence and in favour of the plaintiff. The trial Court also

referred to the work order issued by the BDO in favour of

the plaintiff and observed that if the half-constructed house

remains in that stage, it will not be beneficial to either

party. This implies that the trial Court was subjectively

satisfied that an order restraining the defendants from

creating disturbance in the construction work was

necessary to be passed and along with it a positive order

permitting the plaintiff to construct the house was also

passed.

10. Coming to the impugned order, it is seen that the trial

Court appears to have been swayed away by the fact that

(i)an appeal against the order of injunction is pending;

(ii)the plaintiff had not applied for local inspection under

Order 39 Rule 7 and (iii)the remedy for violation of an order

of injunction lies under Order 39 Rule 2-A.

11. As regards pendency of the appeal preferred by the

defendants against the order of injunction, it is to be noted

that the same is obviously an appeal filed under Order XLIII

Rule 1(r). Rule 2 provides that the rules of Order XLI shall

apply to appeals under Order XLIII. Relevant portion of

Rule (5) of Order XLI reads as follows:-

"5. Stay by Appellate Court.--(I) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree."

xxxx xxxx xxxx xxxx

12. Thus, mere filing of an appeal cannot and does not

operate as a stay of the order appealed against. So, merely

because the order of injunction has been challenged before

the higher forum does not, ipso-facto, mean that the order

appealed against no longer exists, unless of course an order

of stay operation of the same has been passed. In the

instant case, the impugned order does not mention if any

order of stay was passed by the appellate Court, nor has

anything been placed before this Court to suggest that

operation of the order of injunction has been suspended.

This Court therefore, holds that pendency of the appeal in

the facts and circumstances, shall have no bearing on the

application seeking police assistance.

13. Coming to the ground that the plaintiff has not

applied for local inspection under Order XXXIX Rule 7, this

Court fails to understand as to how the same is relevant.

Order XXXIX Rule 7 reads as follows:-

"7.Detention, preservation, inspection, etc., of subject-matter of suit-

(1)The Court may, on the application of any party to a suit and on such terms as it thinks fit.-

(a)make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;

(b)for all or any of the purposes aforesaid authorize any person to enter upon or into an land or building in the possession of any other party to such suit; and

(c)for all or any of the purposes aforesaid authorize any samples to be taken or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2)The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule."

14. The question of detention, preservation and inspection

etc., of the suit property is not in the least involved.

Therefore, reference to the provision by the trial Court is

fallacious.

15. The next ground cited by the trial Court in the

impugned order is existence of alternative remedy in the

form of an Order 39 Rule 2-A of CPC. The provision is

quoted below for immediate offence:-

"[2-A. Consequence of disobedience or breach of injunction.-(1)In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2)No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]"

16. Undoubtedly, creation of disturbance by the

defendants in the construction work would amount to

violation of the order of injunction but then, the question

that needs to be answered is whether the provision would

be sufficient as a remedy. True, the CPC does not

specifically provide for police assistance for implementation

of the order of the Court but the power under Section 151

of CPC is wide enough to be exercised for protection of the

rights of the parties if the available provisions are found to

be inadequate. In the case of Meera Chauhan V. Harsh

Bishnoi & Another 2007 (12) SCC 201 the Supreme

Court held as follows:-

"18.At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order."

17. In the case of Gokula Naik V. Pitambar Naik &

Others 2022 (II) OLR 965 a co-ordinate Bench of this

Court referring to Meera Chauhan (Supra) held as

follows:-

"8.4. Further, the Court has to see the parties to the proceeding should respect the order of the Court. In the instant case, parties are directed to maintain status quo over the suit property. Hence, the Court has to see that the order of status quo passed by it is respected by the parties. A relief under Order XXXIX Rule 2-A C.P.C. may not be sufficient in all cases to mitigate the loss suffered by a party due to evaluate the grievance of the petitioner vis-à-vis the loss likely to be suffered, if timely intervention is not made to see that the order of status quo is implemented. On perusal of the impugned order under Annexure-4, it appears that this material aspect was not taken into consideration by learned trial Court while adjudicating the petition under Section 151 C.P.C. in C.M.A. No.112 of 2021

18. Similar view was taken by the co-ordinate Bench in

the case of Smt. Manoj Manjari Mohapatra & Another V.

Sri Kapila @ Kapilendra Mohapatra & Another (CMP

No.128/2021).

19. Thus, the settled position of law is that directing

police assistance would undoubtedly be an extreme step

but then if the situation so warrants, the Court can

exercise such power.

20. Coming to the facts of the present case, as already

stated, besides restraining the defendants from creating

disturbance, the trial Court also passed a positive order

permitting the plaintiff to construct the house in question.