Andhra HC (Pre-Telangana)
G. Anandam And Ors. vs The Warangal Municipal Corporation, ... on 11 September, 1996
Equivalent citations: 1997(1)ALT434, 1997 A I H C 1444, (1997) 1 ANDH LT 434, (1997) 1 APLJ 83, (1997) 1 CIVILCOURTC 606, (1997) 3 LJR 172, (1997) 1 ANDHLD 587
ORDER S.V. Maruthi, J.
1. The question involved in these Revision Petitions is maintainability of Execution Application in Execution Petition No. 4/96 and the correctness of the order passed by the learned Judge. All the 26 C.R.Ps. are disposed of by this common judgment.
2. C.R.P. Nos. 2356/96 to 2361/96 and 2520/96 to 2523/96 are filed by the Decree-holders in O.S. No. 45/83. C.R.P. Nos. 3140/96 to 3155/96 are filed by the Judgment-debtor i.e., Municipal Corporation of Warangal in O.S. No. 45/83. The brief facts out of which the present C.R.Ps. arose are as follows:
The Municipal Corporation-respondent constructed shopping complex in 1977 in Warangal. The said complex was leased out for a period of five years to the petitioners from 1-1-1978. The lease contemplates renewal of lease for a further period of five years. The original period of lease having expired on 31-12-1987, eviction notices were issued by the Municipal Corporation to the petitioners for eviction. The petitioners filed Original Suit No. 45/83 and other batch of suits contending that they are entitled to continue in possession as there is no default in payment of rent and that they are entitled for renewal of lease and for a permanent injunction restraining the respondent-Municipal Corporation from evicting them. The suit was dismissed by the Prl. District Munsif. On appeal, it was allowed and permanent injunction restraining the respondent from evicting the petitioners was granted. The decrees that were passed by the appellate Court reads as follows: "This Court doth order and decree that the appeal be and is hereby allowed and that the judgment and decree of the lower Court dated 18-11-1985 be and is hereby set aside and that the suit of the Appellant-plaintiff be and is hereby decreed that the respondent-defendant and its employees be and are hereby restrained permanently from evicting the appellant-plaintiff from the suit premises". Thereafter, the petitioners continued in possession of the various tenements. They were also paying rent at the enhanced rate enhancing the rent by 33 1/3 % after every five years. The renewal of lease dated 1-1-83 expired by 31-12-87 and the lease that commenced on 1-1-1988 expired on 31-12-1992 and the lease commenced on 1-1-1993 would expire on 31-12-96. There was no default in payment of rent. The decree has become final as no appeal was filed. While so, on 28-5-96 the second respondent and his officers evicted the petitioners forcibly by throwing away the articles in the Shops and locked the premises high-handedly, illegally and arbitrarily. Therefore, the petitioners filed E.P. No. 4/96 under Order 21 Rule 32 CPC for arrest and attachment of the property belonging to the respondent. Pending disposal of the E.P. they also filed E.A. No. 2/96 requesting the Court to restore possession in exercise of the power Under Section 151 CPC. The first Additional Subordinate Judge passed the impugned order which reads as follows: "On considering the urgency in the interest of justice to protect the rights under the decree, the S.H.O. Police Station, Intezargunj is directed to give police aid to implement the decree till 4-6-1996 if the petitioner is not dispossessed". He also directed notice to the respondent. Aggrieved by the observation of the Second Additional Sub-Judge observing that police aid to implement the decree till 4-6-1990 (sic. 1996) is given if the petitioner is not dispossessed, the Decree-holders filed CRP Nos. 2356/96 to 2361 /96 and 2520/96 to 2523/96. On receipt of notice, the judgment-debtors aggrieved by the order filed the other CRPs i.e., CRP Nos. 3140/96 to 3155/96.
3. The main argument of the learned counsel for the petitioners is that there is a decree in their favour restraining the respondent from interfering with their possession. The decree has become final. The decree is binding on the respondent. As long as the decree is in force, the respondent cannot interfere with their possession and they have no right to evict them, that too forcibly. The action of the respondent is in violation of the decree passed by the Court in O.S. No. 45/83. Therefore, they filed a petition under Order 21 Rule 32 Sub-Clasue (sic. Sub-rule) (1) CPC seeking arrest of the respondent. Pending disposal of the said application, the petitioners invoked the inherent power of the Court seeking restoration of possession. The learned Counsel relied on Jamaluddin v. Mirza Quader Baig, ; Special Deputy Collector v. K. Laxma Reddy, ; Manohar Lal v. Seth Hiralal, .
4. Whereas the counsel appearing for the respondent and the petitioners in CRP Nos. 3140/96 to 3155/96 hereafter called counsel for the Municipality, contended that the decree is a prohibitory decree restraining the respondent-petitioners from interfering with the possession of the Decree-holders. It is not a mandatory injunction. The only remedy for violation of prohibitory order is provided Under Order 21 Rule 32 (1) CPC. Therefore, the Court has no jurisdiction to grant restoration of possession to the Decree-holders in exercise of the power Under Section 151 CPC as it would change the very nature of the decree granted by the Court. The counsel contends that it would amount to converting a prohibitory decree into a mandatory decree which is not permissible in exercise of the power conferred Under Section 151 CPC. In support of his contention, he relied on K. Damayanthi v. Rama Rao, ILR 1970 A.P. 627; Y. Lakshmaiah v. Esso Eastern Inc., ; Sarup Singh v. Daryodhan Singh, (F.B.); Sunder Dass v. Mulakh Raj, AIR 1981 Delhi 85.
5. The question therefore is whether the impugned order is within the jurisdiction of the Court below.
6. It is true in Manohar Lal's case, the Supreme Court held that the inherent power Under Section 151 CPC can be exercised for the ends of justice and that inherent power has not been conferred upon the Court and it is a power inherent in the Court by virtue of its duty to do justice between the parties before it and that there is nothing in the Code affecting the inherent powers of the Court and therefore, in exercise of the power conferred Under Section 151 CPC, temporary injunction can be granted in the circumstances not covered by Order 39 or by any Rule made under the Code. If the Court is of the opinion that the interest of justice requiring the issue of such interim injunction, it can grant injunction in exercise of the power Under Section 151 CPC. It is necessary to point out that this case arose out of a suit instituted for recovery of rupees one lakh on account of the share in the capital assets of the partnership from 'Diamond Industries' and Rs. 18,000/- as interest for detention of the money or as damages or compensation for wrongful withholding of the payment. The respondent filed a petition Under Section 34 of the Arbitration Act in the Asansol Court praying for the stay of the suit in view of the arbitration agreement in the original deed. The said petition was dismissed. The respondent also filed a Civil Suit in the District Judge's Court, Indoor for a decree of Rs. 1,90,519/-. The petitioners filed a petition for stay of the suit in exercise of the power conferred invoking Section 151 CPC which was rejected on the ground that there is specific provision in CPC Under Section 10 CPC (under which) a suit can be stayed. Ultimately both the suits, suits in Asansol Court and the suit in Indoor Court were to continue. At that stage, the respondent filed a petition Under Section 151 CPC in the Indoor Court for restraining the appellant from continuing the proceedings in the suit filed by him in the Court at Asansol. The matter went up to the Supreme Court. In that context the Supreme Court observed that the power Under Section 151 CPC can be exercised for issue of temporary injunction in cases where the circumstances are not covered by Order 39 CPC.
7. In R. Audemma v. P. Narasimham, a Bench of this Court considered the question whether Under Section 151 CPC the Court in exercise of its inherent powers (can) pass appropriate orders to meet the ends of justice. The brief facts of the case are that a suit was filed for possession of a portion of channel and for permanent injunction restraining the petitioner from interfering with the respondent's possession of the channel and for removing the silt in the said channel. Pending disposal of the suit, application for temporary injunction was filed. The Trial Court granted injunction. The respondent was implementing the order of injunction. Then at that stage the petitioner raised an objection to the method and manner of implementing the order of injunction. Thereupon, the respondent filed I.A. 600/68 Under Section 151 CPC requesting the Court to grant aid in order to remove the silt in the channel and allow the excess rain water to flow through the said channel in view of the injunction orders, which was permitted by the trial Court. A revision was filed in the High Court. It was observed that:
"No doubt the Court, while exercising the power Under Section 151 CPC will have to follow the procedure which is not prohibited by law, but unless such a procedure is clearly and expressly interdicted by law there is no reason to presume why the Court should not adopt the procedure which would aid the Court in the implementation of its order and which would also meet the ends of justice or which would prevent the abuse of the process of Court."
It was also observed that "The provision for penalty is entirely different from the enforcement of the order itself as we have mentioned earlier."
It was also observed "It has to be noticed that Order 39 Rule 2(3) CPC provides only for punishment by attachment of the property or by detention in civil prison of the person who committed breach. But, it does not further provide for implementation of the order of injunction itself. Order 39 Rule 2(3) cannot be said to be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience of the order. In such a case there being no other express provision in the code for enforcement of the order. It is not only proper but also necessary that the Courts should render all aid to the aggrieved party to derive full benefits of the order."
It is no doubt true in the decision referred to above it was held that where there is no specific provision under the Code of Civil Procedure, the Court has inherent powers to pass an order to do justice to the parties. But it is pointed out in all these three cases the question of exercising the power Under Section 151 CPC arose at an interlocutory stage i.e., at a stage when the suit was still pending and there was no decree either way.
8. Sri Copal G. Naik, Counsel appearing for Municipal Corporation of Warangal relied on Venkata Subbayya v. S. Veerayya, . The question that arose for consideration in the said case is interpretation of Order 21 Rule 32 (1) and (5) CPC. It was held that "Sub-rule (1) of Order 21 Rule 32 would apply to both mandatory as well as prohibitory injunctions.........The word injunction in Sub-rule (5) has been clarified by the words has not been obeyed and the rule says that in the event of disobedience of the injunction, the Court may direct that the act required to be done so far as practicable by the decree-holder or some other person pointed out by the Court. This could only be a mandatory direction. A prohibitory direction would be not to do an act. A mandatory direction is a command to do a positive act. A prohibitory injunction is a negative one restraining him from doing a particular act. The difference between the two is obvious and Rule 32(5) can only be construed as applying to mandatory injunctions and not to prohibitory injunctions."
9. It was also observed referring to Section 51 (e) CPC that:
"Section 51 (e) says that subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree in such other manner as the nature of the relief granted may require. Under this section whether by itself or read with Section 151 CPC a decree can not be executed in circumstances which give a fresh cause of action to the decree-holder."
10. The judgment in Venkata Subbayya v. S. Veerayya, was followed in Y. Lakshmaiah v. Esso Estern Inc. (5 supra). It was observed that:
"Hence, the plaintiffs are entitled only to the enforcement of the perpetual or prohibitory injunction granted in their favour as per decree in O.S. No. 282/70. If they are in possession of the property they can maintain that possession with the help of that perpetual injunction. If there is any violation of the perpetual injunction they can certainly take action against the persons meddling with their rights by proceeding under Order 21 Rule 32(1) CPC. Admittedly, the plaintiffs have not taken any steps Under Order 21 Rule 32(1) CPC. The prayer now asked for by the plaintiffs comes within Order 21 Rule 32(5) CPC. They have asked for the appointment of a Commissioner to help them in re-installing their equipment in the suit site and to note the wrongful obstruction by the defendants. They have also asked for the police aid to assist them. These things are not warranted by the decree as it stands now. Under the guise of enforcing the perpetual injunction they cannot ask for any reliefs, which are not granted by the decree."
It was further held that:
"The decree passed in the suit as already stated, does not contain any mandatory injunction even against the third defendant. The decree is only perpetual or prohibitory injunction. In such a case the only relief, to which the plaintiff is entitled is the enforcement of that decree and to avail that decree to maintain their possession."
11. The next decision is a Full Bench decision of Delhi High Court in Sarup Singh v. Daryodhan Singh (6 supra). The question involved in this case is the validity of an order passed by the trial Court directing delivery of possession of immovable property in execution of decree for mandatory injunction. It was held that:
"A decree for injunction is normally to be executed by detaining the judgment-debtor in civil prison or by attachment of his property or both Under Order 21 Rule32(1). Ordinarily these two coercive measures would constitute an effective remedy to compel the judgment-debtor to obey the decree or order of the Court. If the judgment-debtor fails to vacate the premises in spite of having suffered detention in prison there is no impediment to further exercise of punitive powers Under Rule 32(1) and (3) according to law."
The next judgment relied on is Sunder Dass v. Mulakh Raj (7 supra). It is a case where a decree for permanent injunction restraining the judgment-debtors from interfering with the possession in relation to the plots of the decree-holder applied Under Section 151 CPC complaining that the judgment-debtors have taken unauthorised possession of the premises. The Decree-holder has contended that the Court should issue warrant for possession against the judgment-debtors under its inherent powers. It was held "that warrant of possession could not be issued by the Court under its inherent power Under Section 151 and neither it could be granted Under Order 21 Rule 32 or Order 21 Rule 32(5)." It was also observed that no resort can be had to the inherent powers of the Court, as the execution of decree for permanent injunction is specifically provided in Order 21 Rule 32(1).
12. It emerges from the above that the exercise of inherent power Under Section 151 CPC to meet the ends of justice depends on facts and circumstances of each case. The judgment of the Supreme Court as pointed out in the earlier paragraphs in Manoharlal v. Sethi Hiralal (3 supra) and the judgment in Ademma (8 supra) and Jamaluddin (1 supra) dealt with cases where the Courts in exercise of the inherent power Under Section 151 CPC granted relief to meet the ends of justice and those were cases where there was no decree as such and at the interlocutory stage, the Courts exercised the power Under Section 151 CPC whereas the cases in Venkatasubbaiah (9 supra), Y. Lakshmaiah (5 supra), Sarup Singh (6 supra) and Sunder Dass (7 supra) relate to the interpretation of Order 21 Rule 32(1) and (5) CPC. The distinction that was pointed out was that if there is violation of a decree for mandatory injunction the remedy is provided Under Order 21 Rule32(1) & (5) CPC. whereas in the case of prohibitory order prohibiting one party from interfering with the possession of another party the remedy for enforcement of prohibitory order is provided Under Order 21 Rule 32(1). In a suit where injunction restraining the party from interfering with the possession of the plaintiff is decreed and the plaintiff is dispossessed high-handedly without taking any recourse to law, the remedy available to the plaintiff-Decree-holder is to seek arrest and attachment of the judgment-debtor who violated the decree for prohibitory injunction Under Order 21 Rule 32(1) and he cannot seek recourse to Order 21 Rule 32(5) CPC. He cannot ask for restoration of possession as it would amount to modifying or altering the decree granted by the Court. Under those circumstances the remedy available to the petitioner is to file a fresh suit. If a decree-holder is wrongfully dispossessed in violation of the prohibitory decree, his remedy is to seek arrest of the Judgment-debtor and attachment of his property and not to seek restoration of possession. If he wants restoration of possession it can be obtained by filing a fresh suit as the relief sought for would alter or modify the very nature of the decree which cannot be granted Under Section 151 CPC. In exercise of the inherent power Under Section 151 CPC the Court cannot go beyond the decree or travel beyond decree and modify or alter the decree. Therefore, the learned counsel for the respondent Municipality Mr. Gopal G. Naik is right in his submission that the trial Court should not have passed the order directing Police aid for restoration of possession.
13. I would have disposed of the Revision Petitions directing both the petitioners as well as the respondent in all the Revision Petitions to approach the trial Court as the order passed by the trial Court is only an interim order. However, having regard to the elaborate arguments advanced by both the counsel, I have dealt with the matter on merits as well as on the legal issues. In the light of the above discussion, it is clear that the remedy of the petitioners is by way of a regular suit or any other remedy available under law and he cannot ask for restoration of possession Under Section 151 CPC in execution of a decree for prohibitory injunction obtained by him. However, it does not preclude from prosecuting the remedy by way of execution of the decree Under Order 21 Rule 32(1) CPC for arrest and detention and attachment of the property of the judgment-debtor by the petitioners.
14. Accordingly CRP Nos. 3140/96 to 3155/96 filed by the judgment-debtor are allowed and the impugned order is set aside. CRP Nos. 2356/96 to 2361/ 96 and 2520/96 to 2523/96 are dismissed. No costs.