Gourishetty Srinivas vs The State Of Telangana
2023 Latest Caselaw 4024 Tel

       HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

             WRIT PETITION No. 31603 of 2023

ORDER:

This writ petition is filed by the petitioner seeking

to declare the action on the part of respondent Nos.2

and 3 in not considering the representation made by

the petitioner, dated 05.11.2023 seeking to providing

police aid for implementing the perpetual injunction

orders granted through judgment and decree, dated

31.08.2023 passed in O.S.No.34 of 2023 on the file of

the Principal Senior Civil Judge, Bhongir, as illegal and

arbitrary.

2. Heard the learned counsel for both sides and

perused the record.

3. It is the case of the petitioner that he is the

owner and possessor of land admeasuring Ac.0.03¼

guntas in Sy.No.44/e, Ac.0.01½ guntas in Sy.No.45/E,

Ac.1.09½ guntas in Sy.No.52/U/2/1 and Ac.0.28½

guntas in Sy.No.52/AA total to an extent of Ac.2.03½

guntas situated at Khairthapur Village, Yellagiri Gram

Panchayat, Choutuppal Mandal, Yadadri-Bhuvanagiri

District, having purchased the same through registered

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sale deed bearing document No.16056 of 2019, dated

31.12.2019. It is the further case of the petitioner that

respondent Nos.4 to 6, without having any right, title or

interest over the subject property are trying to interfere

with his peaceful possession, he was constrained to

institute a suit vide O.S.No.34 of 2023 on the file of

the Principal Senior Civil Judge, Bhongir and the said

suit was decreed vide Judgment and Decree, dated

3 1 .0 8 .2 0 2 3 .

4. The learned counsel appearing for the petitioner

has vehemently contended that even after passing of the

judgment and decree in O.S.No.34 of 2023, the

unofficial respondents are interfering with the

possession of the petitioner, which necessiated the

petitioner to approach the police seeking police aid for

implementation of the judgment and decree passed in

O.S.No.34 of 2023.

5. Per contra, the learned Assistant Government

Pleader for Home appearing for respondent Nos.1 to 3

has submitted that except approaching the police, the

petitioner has not obtained any orders either from the

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Court of the Principal Senior Civil Judge which has

passed the judgment and decree in O.S.No.34 of 2023

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

(2012) 4 SCC 307

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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 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

(2017) 15 Supreme Court Cases 659

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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

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

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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, dated 31.08.2023 passed in

O.S.No.34 of 2023 on the file of the Principal Senior

Civil Judge, Bhongir, without invoking the provisions

of Order XXI Rule 32 of C.P.C. The prayer of the

petitioner is to direct respondent Nos.2 and 3 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

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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 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

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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

31.08.2023 passed in O.S.No.34 of 2023 on the file of

the Principal Senior Civil Judge, Bhongir. However, the

petitioner is at liberty to file an appropriate

application before the competent Civil Court, in

accordance with law. If such application is filed, the

learned Principal Senior Civil Judge, Bhongir, 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.

13. As a sequel, miscellaneous petitions pending, if

any, shall stand closed.

________________________________ JUSTICE C.V.BHASKAR REDDY 15.11.2023 gkv