Jithender Reddy vs Smt.Swaroopa
2023 Latest Caselaw 870 Tel

     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

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

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

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

THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

CIVIL REVISION PETITION No. 176 OF 2023

DATE: 21-02-2023