Telangana High Court
Gedam Rekha Bai vs Sandela Guruvaiah on 17 August, 2022
Author: N. Tukaramji
Bench: N. Tukaramji
THE HON'BLE SRI JUSTICE N. TUKARAMJI
CIVIL REVISION PETITION No. 1571 of 2022
ORDER:-
Challenging the proprietary of the order dated 04.07.2022 in E.A.No. 8 of 2021 in E.P.No.18 of 2021 in O.S. No.9 of 2007 on the file of the Junior Civil Judge-cum-Judicial Magistrate of First Class at Sirpur-T, the 5th to 8th and 10th respondents (hereinafter, 'the respondents') filed this revision petition.
2. The impugned petition had been filed by the 1st to 4th respondents herein (hereinafter, 'the petitioners') with a prayer to direct the Station House Officer, Police Station of Dahegaon to provide police protection for continuation of their possession over the suit scheduled property.
3. Briefly stated the facts are that, earlier the petitioners filed a suit vide O.S.No.9 of 2007 seeking perpetual injunction against the 1st and 4th respondents (predecessors in interest to the respondents) over the suit schedule property of Ac.10-00 cents situated at Nadinala land, Ityala Village, Dahegaon Mandal. The trial Court had decreed the suit on 14.06.2012. As no appeal was preferred, the decree attained finality.
NTR,J 2 Crp_1571_2022
4. In the year 2021, the decree-holders filed E.P.No.18 of 2021 against the respondents contending willful disobedience of the decree on 18.06.2021 and to commit them to civil prison for a period of one month. Pending the execution petition, the impugned interlocutory application i.e.,E.A.No.8 of 2021 has been filed seeking police protection to maintain peaceful possession by pleading that the respondents are bound by the decree, as legal representatives of the judgment debtors/1st and 4th respondents. In addition, projected that the respondents are making hectic efforts to trespass and occupy the suit land and that there was intimidation to implicate in the cases under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and that there is imminent possibility of foisting cases and causing mischief, thus, sought for the police protection.
5. The Trial court, considering the submissions allowed the application and directed the Station House O fficer, Dahegaon police station to provide necessary police aid to the petitioners in implementing the perpetual injunction and decree dated NTR,J 3 Crp_1571_2022 14.06.2012 in O.S.No.9 of 2007, pending disposal of the execution petition.
6. In this revision, the respondents contended that, as per the settled law, for the transgression of decree of perpetual injunction, granting police protection itself is not maintainable. Howsoever, the executing Court did not consider the facts of alleged infractions and the absence of explanation, as to the reasons for not approaching the police on the contended transgression. Further, except the contention, no material has been placed to substantiate the grounds pleaded by the petitioners for the police protection. The Court below should have taken into account the fact that the respondents were not the parties to the suit proceedings. Howsoever, without establishing the fact of disobedience by the respondents granting blanket order in a routine manner is untenable, hence prayed for setting aside the impugned order.
7. The respondents placed reliance on following authorities:
i. Golikota Reddy vs Goli Raja Gopala Reddy And Others1 1 2000(6) ALT 580 NTR,J 4 Crp_1571_2022 ii. D. Tulja Devi and others vs Margam Shankar and another2
8. On the other hand, the petitioners pleaded that the trial Court had considered the materials in right perspective and granted the police aid. Earlier, the complainants approached the police for protection, but as there was inaction, filed writ petition wherein the Hon'ble High Court was pleased to direct the Court for expeditious disposal of the Interlocutory Application for the police protection. Thus, the respondents and the Court were in knowledge as to the interference and acts of disobedience of the decree by the respondents. Further, the petitioners after exhausting all the possible remedies approached the Court below, seeking police protection and on satisfaction, the Court had granted the police protection to protect the petitioners, who are the decree-holders from the unlawful interference and to secure the possession over the suit schedule property. Thus, the impugned order is sustainable.
2 2010(3) ALT 20 NTR,J 5 Crp_1571_2022
9. In these rival pleas, the points that arise for determination are:
i) Whether the granting of police protection during pendency of the execution petition is maintainable?
ii) Whether the petitioners had made out case for granting police protection?
iii) Whether the interim order is sustainable in the facts and law?
10. The main contention of the respondents is that seeking police protection during the pendency of the execution petition for infringement of the decree of perpetual injunction is not maintainable and referred to the cases of Galikotareddy (supra) and D. Tulja Devi (supra).
11. In Galikotareddy, during the pendency of appeal against the decree of perpetual injunction, as the interim stay had been vacated by the Court, the respondents/decree holder therein proceeded with execution petition and sought police protection. In revision, the High Court held that, unless the execution petition is finally heard, asking the police protection for implementation of the decree is bad.
NTR,J 6 Crp_1571_2022
12. In D. Tulja Devi, the Hon'ble Division Bench of the High Court held that 'when execution petition filed under Order XXI, Rule 32 of the Code of Civil Procedure (for short, 'the C.P.C.') for execution of decree for perpetual injunction by arrest and detention of judgment debtor to civil prison or by attachment of property or both, pending consideration of such petition in exercise of powers under Section 151 of the C.P.C., the executing Court, cannot direct the police to ensure obedience to the decree. Further, after the decree has become final or long thereafter, if there is violation of injunction by the judgment debtor, the Court which passed the decree can order detention and attachment of property.'
13. The petitioners refuted that, the Courts would have all the powers to do whatever is necessary and proper to see that the decree holder enjoys the fruits of the decree and to make its orders effective. Therefore, the powers of the Civil Court to order police protection to enforce the decree of permanent injunction should not limit the scope of the inherent powers under Section 151 of the C.P.C.
NTR,J 7 Crp_1571_2022
14. In this position, it is noteworthy that, Rule 32 of Order XXI of the C.P.C. enables the plaintiff/decree holder to get the decree enforced in case of disobedience by the defendant by detention of the defendant in civil prison or by attachment of his property or by both.
15. The essential factor to be noted is that the respondents are not the defendants in the suit. They are the legal representatives of the defendants (1st to 4th respondents herein) of the suit is the claim of the petitioners. Mere pleading that the respondents as successors of interests is not conclusive and whether the respondents are bound by the decree is foundational aspect to be determined in the execution petition. In such situation, pending enquiry of the indispensable aspect of locus of the respondents, rights litigated upon are inherited or not, proceeding with execution against the respondents would amount to implied acceptance of the suppositions of the petitioners. Hypothetically, if the respondents does not fit in the petitioners' claimed position of legal representatives of the defendant, the alleged infraction would give rise to independent NTR,J 8 Crp_1571_2022 cause of action. As such, the unconcluded setting goes to the root of the very execution. In addition, the pronouncements in the authorities relied on by the respondents, supra, granting blanket police protection, pending the execution petition to implement the decree would be unbecoming.
16. Nevertheless, viewed from other perspective, the decree being perpetual injunction can be enforced only in accordance with the provisions contained in Order XXI, Rule 32 of the C.P.C. For such enjoyment, the decree can be enforced through the officers of the Court by removing the defendant, if obstruction is caused. In such course, if the decree-holders apprehend breach of peace, may in extraordinary circumstances request for the police protection. Therefore, granting of police assistance would not be a matter of course. The petitioners must establish the elements necessitating police assistance. It is pertinent to mention here that the prayer of the petitioners is for continuous police protection against the respondents to implement the decree is per se beyond the framework. It is pertinent to mention that thought the petitioners referred to the respondents' intervention on 30.11.2020, while seeking the police protection, NTR,J 9 Crp_1571_2022 for the reasons best known to them, this incident was not shown as incident of disobedience in the execution petition. Further, except the claim no particulars are atleast pleaded as to the alleged intimidation of foisting false cases. Thus, the contentions of the petitioners are imprecise and delusive.
17. Therefore, the Court is of the considered opinion that, the executing Court without considering the legal standing of the respondents against the decree and granting police protection without bounds is neither supported by the law for implementation of the decree nor by the circumstances pleaded. In effect, I am of the considered opinion that the impugned order is lacking merit and liable to be set aside. However, it is made clear that the observation herein does not preclude the petitioners' liberty to initiate any course recognized under law, if situation warrants in future for the similar relief sought for in the impugned petition against the respondents.
18. Resultantly, the revision petition is allowed and the impugned order dated 04.07.2022 in E.A.No. 8 of 2021 in E.P.No.18 of 2021 in O.S. No.9 of 2007 passed by the Junior NTR,J 10 Crp_1571_2022 Civil Judge-cum-Judicial Magistrate of First Class at Sirpur-T is set aside.
As a sequel, the pending miscellaneous petitions, if any, shall stand closed.
_________________________ JUSTICE N. TUKARAMJI Date: 17.08.2022 ss/prv