Andhra HC (Pre-Telangana)
B. Rama Krishna And Anr. vs M. Naga Raju And Ors. on 14 September, 2006
Equivalent citations: 2007(1)ALD148, AIR 2007 (NOC) 164 (A. P.)
ORDER C.Y. Somayajulu, J.
1. Respondents 1 to 3 obtained a decree of perpetual injunction against the revision petitioners and others. Questioning the said decree, revision petitioners and 5th respondent preferred A.S. No. 16 of 2005 to the Court of the Additional District Judge, Hindupur. But stay of operation of the decree under appeal was not granted therein.
2. Alleging that revision petitioners and others in spite of the decree of injunction against them are trying to interfere with their possession over and are trying to dispossess them from the plaint schedule property through hired gundas, respondents 1 to 3 filed LA. No. 193 of 2006 seeking a direction to the Police, Puttaparthy Urban, to provide police protection to them. The trial Court, by the order impugned in this revision, granted police protection to respondents 1 to 3. Questioning the said order this revision is preferred.
3. The contention of the learned Counsel for the revision petitioner is that earlier when respondents 1 to 3 filed EA. No. 241 of 2005 seeking the same relief, the Executing Court allowed that petition and granted police aid, and when a revision questioning that order was preferred in CRP No. 5995 of 2005, this Court set aside the said order holding that in case of violation of a decree granting perpetual injunction me decree holder has to seek the remedies available in CPC but cannot seek police protection for implementation of such decree and thereafter respondents 1 to 3 filed a petition for the same relief on the original side, and the Court below, without property appreciating the contentions raised, erroneously granted police aid. The learned Counsel also relied on J. Jagannath Reddy v. L. Laxmi Devi (Smt) and Ors. , where it was held that the remedy open in case of violation of decree for perpetual injunction is to proceed under Rule 32 of Order 21 CPC but not by way of seeking police protection. He also relied on Golikota Reddy v. Goli Raja Gopala Reddy and Ors. , where it is held that Civil Court cannot refer the matter of implementation of a decree for perpetual injunction to police, as it will be the negation of the right of the judgment-debtor available under Order 21 CPC, and that the Executing Court, without deciding the application filed under Rule 32 of Order 21 CPC, cannot refer the matter to police for implementation of the decree.
4. The contention of the learned Counsel for the decree-holder is since the Court below allowed the petition basing on the ratio in Kaja Shoukat Ali and Ors v. Smt. Khairunnissa Begum and Ors. 2005 (3) APLJ 285, there are no grounds to interfere with the order under revision.
5. After obtaining a decree for perpetual injunction restraining the revision petitioners and others from interfering with their possession over the plaint schedule property respondents 1 to 3 filed E.P. for recovery of the costs awarded to them, and filed E.A. No. 241 of 2005 therein seeking police protection for implementation of the decree obtained by them. When the Executing Court allowed the said EA. No. 241 of 2005 revision petitioners preferred CRP No. 5995 of 2005 in which that order granting police aid was set aside on the ground that such a petition is not maintainable in an EP for recovery of costs. Therefore, the decree holders/respondents 1 to 3 filed a petition on the original side under Section 151 CPC seeking police protection.
6. Since no suit for perpetual injunction is pending before the trial Court there is no scope for its granting an 'interlocutory' relief on such petition, because a decree was already passed in the suit. It is well known that the life of interlocutory orders passed in the suit would be till the date of disposal of the suit only and so such interlocutory order will not and cannot survive beyond the date of decree of the suit. Though no doubt order of attachment of property would continue even after disposal of the suit till Court sale or till it is raised by the Court that passed the order of attachment or a superior Court sets aside that order. Section 151 CPC can be invoked to protect the ends of justice or to prevent abuse of the process of the Court, only when there is no specific provision in CPC enabling the party to obtain the relief sought. When a remedy sought can be obtained by invoking some provision in CPC, question of the Court granting relief to the party under Section 151 CPC does not arise, because he can seek the relief under the appropriate provision contained in CPC. When no proceeding is pending before the trial Court and when the decree holder has a right to execute the decree in the event of its violation, or threatened violation, by filing a petition under Rule 32 of Order 21 CPC, question of decree holders filing a petition under Section 151 CPC to grant police aid for implementation of the decree does not arise.
7. The facts in Kaja Shoukat All's case (supra), relied on by the learned Counsel for the decree holders, and the facts in this case are different. In that case after a decree for injunction was passed against him by the trial Court and after it was confirmed by the first and second appellate Courts, the defendants therein filed a suit against the plaintiffs in the earlier suit for declaration of his title to and perpetual injunction in respect of the very same property contending that he is in possession and enjoyment of that property and obtained an order of interim injunction against the plaintiffs in the earlier suit, whereupon the plaintiffs in the earlier suit filed a petition seeking police protection for their possession, which was granted. The plaintiff in the second suit i.e., the defendant in the former suit, filed a revision questioning the said order. The learned Judge by placing reliance on R. Audemma v. P. Narasimham and P. Shanker Rao v. B. Suesheela , and holding that the ratio in G. Anandam v. Warangal Municipal Corporation , does not apply to the facts of the case dismissed the revision and confirmed the order granting police aid. The revision petitioner in that case, prima facie, abused the process of Court by filing a suit and obtaining an interim injunction, in respect of a property over which there is an injunction, which prevents him from interfering with the possession of the decree holder in the earlier suit. Obviously arming himself with that order of injunction he might have created a law and order problem. The case of the revision petitioners herein is that respondents 1 to 3 with a view to put them to harassment by police, though they did not interfere with the possession of the decree holders, filed the petition seeking police aid. So Kaja Shoukat Ali's case (supra), does not apply to the facts of this case.
8. In G. Anandam's case (supra) a judgment-debtor in violation of the decree of injunction passed against him, trespassed into the property and took possession of the suit property. The decree holder sought police aid for restoration of his possession. In a revision against the order allowing that petition the learned Judge held that the remedy open to the decree holder is to take recourse to the proceedings under Rule 32 of Order 21 CPC only, but not by seeking police aid for restoration of possession. R. Audemma's case (supra) and P. Shanker Rao's case (supra), are cases in which police protection was granted in pending suits for implementation of the order of interim injunction passed under Rules 1 and 2 of Order 39 CPC. The life of such injunction would only be till the disposal of the suit. Police protection would be granted in such cases in order to maintain status quo during the pendency of the suit, and such protection granted does not continue after the decree, because interim injunction granted earlier, ceases to operate after the decree in the suit.
9. After a decree for perpetual injunction is passed against him if the judgment-debtor in that decree violates that decree, the remedy open to the decree holder is only to file a petition under Rule 32 of Order 21 CPC. Since the Court under Section 38(3) of Specific Relief Act can grant a decree of perpetual injunction, when the defendant 'invades' or threatens 'to invade' the right of the plaintiff, and since Rule 32 of Order 21 CPC lays down that any 'wilful disobedience' of a decree of perpetual injunction results in detention in prison, question whether the J. Dr. in a decree for perpetual injunction has wilfully invaded or threatened to invade the possession of the decree holder is a matter to be judicially determined by the Court. Question of implementation of a decree for perpetual injunction cannot be left to be decided by the police. In J. Jagannath Reddy's case (supra), it is observed that if somebody complains to the police that other persons are trying to trespass into their property or are trying to commit any offence in relation to the possession of their property, the police may take action according to law, and as an order in the nature of injunction, positively protecting the possession of a party to the case, is an executable order, it has to be dealt with in accordance with law under Order 21 Rule 32 CPC, and so granting protection under Section 151 CPC to 'enforce a decree of perpetual injunction' is unknown to law. The same view was taken in Goli Kota Reddy's case (supra).
10. Since the order under revision impliedly amounts to directing the police to take action against the revision petitioners without judicially deciding whether there is any wilful disobedience or not by them of the injunction passed against them, the order under revision is unsustainable and is liable to be and hence set aside.
11. For the above reasons the revision petition is allowed and the order under revision is set aside and LA. No. 193 of 2006 stands dismissed. No costs.