NO POLICE AID IN E.P. PROCEEDINGS OF PERMANENT INJUNCTION DECREE = whether E.A.No.407 of 2004 filed by the first respondent is maintainable or whether the executing Court was justified in granting police aid.= Order 21 C.P.C. provides for the mode of execution of decrees of different purport. The mode of execution would depend much upon the nature of the decree. So far as the execution of the decree for perpetual injunction is concerned, Rule 32 of Order 21 C.P.C. provides for two courses of action, namely arrest of the judgment-debtor or attachment of his properties. Beyond that, no other course of action is permitted. Precedents are to the effect that in case the judgment debtor in a decree for perpetual injunction assumes possession of the schedule property, the remedy open to the aggrieved party is to institute a suit for recovery of possession. Further, invocation of Section 151 C.P.C. in the execution proceedings is almost impermissible.
REPORTED IN http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=6709
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
Civil Revision Petition No.6753 of 2004
12-08-2009
K.Srinivasa Rao (died) per L.Rs. and another.
K.Hanumantha Rao and another.
For the Petitioner: Mr. Subba Rao
For the Respondents: Mr. Venugopala Rao
:ORDER:
The first respondent filed O.S.No.228 of 2001 in the Court of the
Principal Junior Civil Judge, Gurazala against the second respondent and the
petitioners herein for the relief of perpetual injunction in respect of the suit
schedule property. The suit was decreed on 15.04.2003. Alleging that the
petitioners herein are interfering with his possession over the suit schedule
property, the first respondent filed E.P.No.115 of 2004 obviously, under Rule 32
of Order 21 C.P.C. He has also filed E.A.No.407 of 2004 under Section 151
C.P.C. with a prayer to grant police aid. The petitioner opposed the
application on several grounds. The executing Court allowed the E.A., through
the order, dated 25.10.2004. Hence, this revision.
Sri N.Subba Rao, learned counsel for the petitioners, submits that the
grant of police aid in the course of execution of a decree for perpetual
injunction is unknown to law and it is totally outside the scope of the
execution itself. He contends that the executing Court did not take this aspect
into account and had straightaway allowed the E.A.
Sri V.Venugopala Rao, learned counsel for the first respondent, on the
other hand, submits that the petitioners started interfering with the possession
of the first respondent over the suit schedule property, despite the decree, and
police aid was sought to protect the possession.
The short question that arises for consideration in this revision is as to
whether E.A.No.407 of 2004 filed by the first respondent is maintainable or
whether the executing Court was justified in granting police aid.
Order 21 C.P.C. provides for the mode of execution of decrees of different
purport. The mode of execution would depend much upon the nature of the decree.
So far as the execution of the decree for perpetual injunction is concerned,
Rule 32 of Order 21 C.P.C. provides for two courses of action, namely arrest of
the judgment-debtor or attachment of his properties. Beyond that, no other
course of action is permitted. Precedents are to the effect that in case the
judgment debtor in a decree for perpetual injunction assumes possession of the
schedule property, the remedy open to the aggrieved party is to institute a suit
for recovery of possession.
Further, invocation of Section 151 C.P.C. in the execution proceedings is
almost impermissible. The reason is that every contingency is taken care of by
Order 21 C.P.C. Inasmuch as any direction in the execution proceedings visits
with serious consequences, it must be specifically provided for. If there does
not exist any specific provision, recourse cannot be had to Section 151 C.P.C.
in matters of this nature. Viewed from any angle, the order under revision
cannot be sustained in law.
Hence, the civil revision petition is allowed and the order under revision
is set aside. There shall be no order as to costs.
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
Civil Revision Petition No.6753 of 2004
12-08-2009
K.Srinivasa Rao (died) per L.Rs. and another.
K.Hanumantha Rao and another.
For the Petitioner: Mr. Subba Rao
For the Respondents: Mr. Venugopala Rao
:ORDER:
The first respondent filed O.S.No.228 of 2001 in the Court of the
Principal Junior Civil Judge, Gurazala against the second respondent and the
petitioners herein for the relief of perpetual injunction in respect of the suit
schedule property. The suit was decreed on 15.04.2003. Alleging that the
petitioners herein are interfering with his possession over the suit schedule
property, the first respondent filed E.P.No.115 of 2004 obviously, under Rule 32
of Order 21 C.P.C. He has also filed E.A.No.407 of 2004 under Section 151
C.P.C. with a prayer to grant police aid. The petitioner opposed the
application on several grounds. The executing Court allowed the E.A., through
the order, dated 25.10.2004. Hence, this revision.
Sri N.Subba Rao, learned counsel for the petitioners, submits that the
grant of police aid in the course of execution of a decree for perpetual
injunction is unknown to law and it is totally outside the scope of the
execution itself. He contends that the executing Court did not take this aspect
into account and had straightaway allowed the E.A.
Sri V.Venugopala Rao, learned counsel for the first respondent, on the
other hand, submits that the petitioners started interfering with the possession
of the first respondent over the suit schedule property, despite the decree, and
police aid was sought to protect the possession.
The short question that arises for consideration in this revision is as to
whether E.A.No.407 of 2004 filed by the first respondent is maintainable or
whether the executing Court was justified in granting police aid.
Order 21 C.P.C. provides for the mode of execution of decrees of different
purport. The mode of execution would depend much upon the nature of the decree.
So far as the execution of the decree for perpetual injunction is concerned,
Rule 32 of Order 21 C.P.C. provides for two courses of action, namely arrest of
the judgment-debtor or attachment of his properties. Beyond that, no other
course of action is permitted. Precedents are to the effect that in case the
judgment debtor in a decree for perpetual injunction assumes possession of the
schedule property, the remedy open to the aggrieved party is to institute a suit
for recovery of possession.
Further, invocation of Section 151 C.P.C. in the execution proceedings is
almost impermissible. The reason is that every contingency is taken care of by
Order 21 C.P.C. Inasmuch as any direction in the execution proceedings visits
with serious consequences, it must be specifically provided for. If there does
not exist any specific provision, recourse cannot be had to Section 151 C.P.C.
in matters of this nature. Viewed from any angle, the order under revision
cannot be sustained in law.
Hence, the civil revision petition is allowed and the order under revision
is set aside. There shall be no order as to costs.
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