Telangana High Court
Giramoni Naraiah And Another vs The State Of Telangana And 9 Others on 7 July, 2023
HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION No.46893 of 2022
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioners, seeking the following relief:
".......to issue an order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the official respondents in refusing to interfere in the matter and take appropriate steps against the unofficial respondents and refusing to extend aid to the petitioners for implementation of the judgment and decree in O.S.No.691 of 2021, dated 10/11/2022, is challenged in this writ petition as being arbitrary, illegal and violative of Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India and consequently direct the official respondents, more particularly the respondent No.3 to assist the petitioners for implementation of the judgment and decree of the Hon'ble Senior Civil Judge, Ranga Reddy District at Ibrahimpatnam in O.S.No.691 of 2021, dated 10/11/2022, and help the petitioners in protecting their possession over land in Sy.No.467/AA and Sy.No.467/E admeasuring Ac.3-12 gts and Ac.3-13 gts totally admeasuring Ac.6-25 gts situated at Gungal Village, Yacharam Mandal, Ranga Reddy District and pass such other order or orders.....".
2. Heard the learned counsel for both sides and perused the record.
3. The petitioners claim to be absolute owners and possessors of the lands admeasuring Ac.3-12gts and Ac.3-13gts, total admeasuring Ac.6-25gts in Sy.Nos.467/AA and 467/E situated at Gungal Village, Yacharam Mandal, Ranga Reddy District. It is the case of the petitioners that when the respondent Nos.4 to 10 made attempts to interfere with the peaceful possession of the petitioners 2 and criminally trespassed into the land of the petitioners, they were constrained to institute a suit vide O.S.No.691 of 2021 on the file of the learned Senior Civil Judge, Ranga Reddy District, at Ibrahimpatnam, and the said suit was decreed vide judgment and decree dated 10.11.2022.
4. The learned counsel appearing for the petitioners has vehemently contended that even after passing of the judgment and decree in O.S.No.691 of 2021, the unofficial respondents are interfering with the possession of the petitioners, which necessitated the petitioners to approach the police seeking police aid for implementation of the orders passed in O.S.No.691 of 2021.
5. Per contra, the learned Assistant Government Pleader for Home appearing for the respondent Nos.1 to 3 has submitted that except approaching the police, the petitioners have not obtained any orders either from the Court of the Senior Civil Judge, which has passed the judgment and decree in O.S.No.691 of 2021 or from this Court granting police protection. Since there was no specific direction from the competent Court, the respondents-police have not acted upon the representation submitted by the petitioners.
6. It is settled law that a writ of mandamus cannot be sought for protection of property, status or right which remains to be 3 adjudicated, that too when such an exercise of adjudication can only be undertaken in properly instituted proceedings. Under the guise of seeking a writ of mandamus, directing the police authorities to give protection, 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.
7. The Hon'ble Supreme Court in Kanwar Singh Saini vs. High Court of Delhi1, 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 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 1 (2012) 4 SCC 307 4 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."
8. It is pertinent to state that 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.
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9. In the instant case, the petitioners have filed the present writ petition seeking to implement the judgment and decree dated 10.11.2022 passed in O.S.No.691 of 2021 by the learned Senior Civil Judge, Ranga Reddy District at Ibrahimpatnam, without invoking the provisions of Order XXI Rule 32 of CPC. In the affidavit filed accompanying the writ petition, the petitioners have stated that the unofficial respondents are claiming an extent of Ac.6-25gts in the same land which is located towards South of the lands of the subject lands of the petitioners. It is further stated that subject property along with the property being claimed by the unofficial respondents were ancestral properties of the parties and that they have already been partitioned and since there were some disputes with regard to the location of the land, a survey was conducted at the instance of the petitioners, after service of notice to the unofficial respondents and the unofficial respondents did not dispute or file any objection although the survey was conducted in their presence. The prayer of the petitioners is to direct the respondent No.3-police 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. The averments of the affidavit 6 disclose that the police have already expressed their inability to provide police aid to the petitioners. In such circumstances, the petitioners are 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 grants 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 petitioners have to avail such remedy, if they feel that unofficial respondents are obstructing them from enjoying the fruits of the 7 decree or if there is any disobedience or breach of the judgment and decree.
10. In view of the above remedy available to the petitioners, this Court is not inclined to grant the relief sought by the petitioners seeking police aid for implementation of the judgment and decree dated 10.11.2022 passed in O.S.No.691 of 2021 by the learned Senior Civil Judge, Ranga Reddy District at Ibrahimpatnam. However, the petitioners are at liberty to file an appropriate application before the competent Civil Court, in accordance with law.
11. With the above observations, this Writ Petition is disposed of.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed. No order as to costs.
_________________________ C.V.BHASKAR REDDY, J Date: 07-07-2023 vsl/scs