Smt. Ameena Sultana vs The State Of Telangana
2023 Latest Caselaw 3001 Tel

          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,

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

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

(2012) 4 SCC 307

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

(2017) 15 Supreme Court Cases 659

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,

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

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,

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