Telangana High Court
Deben Mandal, vs State Of Telangana, Rep. By Its ... on 22 January, 2024
HON'BLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION No.28598 of 2015
ORDER:
This Writ Petition is filed by the petitioner seeking to declare
the inaction on the part of respondent No.2 in providing police
protection in respect of the property admeasuring Ac.2.00 guntas in
Sy.No.23/432, Nazrulnagar, Kagajnagar Mandal, Adilabad District,
for implementation of the judgment and decree dated 26.11.2014
passed in O.S.No.65 of 2011 on the file of the Junior Civil Judge,
Sirpur, 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 he is the owner and
possessor of land admeasuring Ac.2.00 guntas in Sy.No.23/432,
Nazrulnagar, Kagajnagar Mandal, Adilabad District, having
acquired the same through lavoni patta. Ever since the date of
granting patta, he was in peaceful possession and enjoyment of the
said property. While so, when one Upanand Sarkar and Sachin
Sarkar tried to interfere with his peaceful possession and
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enjoyment of the said land, he was constrained to institute
O.S.No.65 of 2011 on the file of the Court of Junior Civil Judge,
Sirpur and the said suit was decreed vide judgment and decree
dated 26.11.2014 and the said judgment became final. It is the
further case of the petitioner that as the defendants in the said suit
were interfering with his peaceful possession and enjoyment of the
said land, he gave representation to respondent No.2 to take
necessary action to restrain the defendants in the said suit from
interfering with his possession of the said land. The grievance of
the petitioner is that despite the said representation, respondent
No.2 has not taken any action and hence, he approached this Court.
4. The learned counsel appearing for the petitioner has
vehemently contended that even after passing of the judgment and
decree in O.S.No.65 of 2011, the defendants in the said suit were
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.65 of
2011.
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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 Junior Civil Judge, Sirpur which has
passed the judgment and decree in O.S.No.65 of 2011 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
(2012) 4 SCC 307
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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 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
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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 another2, 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
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
(2017) 15 Supreme Court Cases 659
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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 direct respondent No.2 to provide police
protection for implementation of the judgment and decree, dated
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26.11.2014 passed in O.S.No.65 of 2011 by the learned Junior
Civil Judge, Sirpur, without invoking the provisions of Order XXI
Rule 32 of C.P.C. While police officers are no doubt obligated to
assist in implementation of orders of Court, any bona fide 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
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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 26.11.2014 passed in O.S.No.65 of 2011 by the learned
Junior Civil Judge, Sirpur. 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 Junior
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Civil Judge, Sirpur, 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
22.01.2024
dr
