This Court has observed, in the case of Ratanabi v. Satwarao
"It is no doubt that the Police help is an extraordinary mode or procedure to implement the execution of the decree of orders. In other words, Police help is to be regarded as an extreme step, and as such it should not be recommended unless the Court is fully convinced of the existence of a grave emergency. Therefore, a decree-holder praying for police help has to state whether such help is required either;
(1) because of apprehension of violence or obstruction from judgment-debtor himself or at his instance by others or; (ii) because of conditions of a general character such as the locality where execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution.
Thus, the special procedure for police help would not be allowed unless there are reasonable ground to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be done in disturb stage or a class of people similarly situated being likely to make common cause that the judgment-debtor can resist the execution.
Besides this, in addition to the circumstances enumerated above to grant police help the Court must be fully convinced of the existing of grave emergency and to prevent commission of cognizable offence by the judgment-debtor or on his behalf by any person or a third party."
1. By an order dated 16-9-2003 this Court has issued notice for final disposal of this writ petition. An Affidavit of service has been filed by the Petitioners which records that the Respondents have been served with notice of this Petition.
2. By this petition, an exception is taken to the order dated 18-8-2003 passed by the learned Civil Judge Junior Division, Kalyan below application Exh-43. By the said application, Petitioners prayed for direction that police aid should be made available for implementation of the order of temporary injunction passed by the trial Court in the said suit. The learned trial judge rejected the said application on two grounds. The learned trial judge held that Application at Exh.28 containing similar prayer has been rejected. The learned Judge also was of the opinion that there was no provision for allowing police aid for execution of interim order.
3. I have heard both the learned Counsel at length. Mr. Angal for the Petitioner submitted that Petitioners had made application at Exh.28 praying for direction to grant police aid for implementation of the order of temporary injunction. While rejecting the said application by order dated 4-5-2002, the learned Judge observed that it was for the Petitioners to independently move the police and take necessary aid. The learned Counsel pointed out that though the learned judge observed that there was no provision in C.P.C. to grant such police aid, he also observed that the police aid can be granted in exceptional cases. In view of the observations made in the said order, the Petitioner applied to the Respondent No. 4 vide his application dated 4-4-2003 for grant of police aid. In the subsequent application at Exh.43, the Petitioners pointed out that no action was taken by the police against Respondent Nos. 1 to 3 though it was brought to the notice of the Police Authorities that Respondent Nos. 1 to 3 have committed breach of order of injunction. In the said application at Exh.43, the Petitioners recorded their apprehension that without police aid, Petitioners will not be in position to protect their possession while carrying out repairs to the suit chawl. The learned Counsel relied upon the judgment of this Court Smt. Ratnabi w/o Narayanrao
Naik and Anr. v. Shri Satwarao a/o Naryanrao Naik . The learned Counsel pointed out that his Court has taken a view that Civil Court has power to grant police help for implementation or execution of decree or the order passed by the Court.
4. The learned Counsel appearing for Respondent Nos. 1 to 3 has opposed this petition. The learned Counsel contended that no case has been made out by the Petitioner for grant of police aid.
5. Section 36 of the code of Civil Procedure (hereinafter referred to as said Code) provides that the provisions of the said Code relating to execution of decree are also applicable to execution of orders in so far as they are applicable. Under the provisions of Rule 32 or Order XXi, mode is prescribed for execution of decree for injunction. In so far as decree for injunction is concerned, the same can be executed by attachment of property of the person disobeying the decree for injunction or by detention of such person or by both. Rule 2(A) or Order XXXIX of the said Code empowers the Court to penalise the person who has disobeyed the order of temporary injunction. Rule 11 of Order XXXiX of Code of Civil Procedure permits the Court to strike out defence of defendant who commits breach of an order of the Court. The object of all the said provisions is to ensure that the orders passed by the Court of law are implemented and obeyed by all concerned. Section 151 of the said Code saves inherent power to Civil court to make such orders as may be necessary for meeting the ends of justice. Some High Courts have taken a view that under Section 151 of the said Code, Court has power to direct the Police Authorities to give necessary aid for implementation or for enforcing the order of temporary injunction.
6. This Court has observed, in the case of Ratanabi v. Satwarao
"It is no doubt that the Police help is an extraordinary mode or procedure to implement the execution of the decree of orders. In other words, Police help is to be regarded as an extreme step, and as such it should not be recommended unless the Court is fully convinced of the existence of a grave emergency. Therefore, a decree-holder praying for police help has to state whether such help is required either;
(1) because of apprehension of violence or obstruction from judgment-debtor himself or at his instance by others or; (ii) because of conditions of a general character such as the locality where execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution.
Thus, the special procedure for police help would not be allowed unless there are reasonable ground to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be done in disturb stage or a class of people similarly situated being likely to make common cause that the judgment-debtor can resist the execution.
Besides this, in addition to the circumstances enumerated above to grant police help the Court must be fully convinced of the existing of grave emergency and to prevent commission of cognizable offence by the judgment-debtor or on his behalf by any person or a third party."
7. The aforesaid observations made by the learned Single Judge of this Court are very relevant for the present case. If Civil Court which has passed the order of temporary injunction takes a view that there is no power vested in the Court to direct the police to grant assistance for enforcing or for implementation of the order of temporary injunction, the very purpose of granting order of temporary injunction may be trustrated in a given case. It is the duty of every police Officer to enforce the law of the land. The duties of police officers are reflected in Section 64 and Section 66 of the Bombay Police Act, 1951. In my opinion, the view taken by the learned Trial Judge that "There is no provision for police and for execution of interim order, is totally incorrect. The learned Judge failed to appreciate that he has a power under Section 151 of the said Code to pass the order directing that police help should be made available provided facts of the case warrant passing of such order.
8. As observed by this Court in the aforesaid judgment, the grant of police aid is an extreme step and therefore order for grant of police help or police assistance cannot be made unless the Court is fully convicted about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. It is very difficult to give exhaustive list of circumstances in which the Court can exercise the said power. However, said power is to be exercised with caution and the said power can be exercised only after the Court is fully convinced of existence of grave situation warranting exercise of said power.
9. By an impugned order, the learned trial Judge has rejected the prayer made by the Petitioners is Application at Exh.43 on the ground that there is no provisions in law for grant of police help, the said view taken by the trial Judge is totally unsustainable. The learned judge has no doubt stated that in earlier application at Exh.28 similar relief has been rejected. however, that will not prevent the Petitioners from applying afresh for grant of police help if case is made out for passing such orders on the basis of events which have taken place subsequent to the passing of the order below Exh.28.
10. The learned Counsel for Petitioners has submitted that Petitioners be granted liberty to withdraw the application dated 21-4-2003 (at Exh. 43) with liberty to make afresh application for same relief. The learned Counsel submitted that the petitioners will place all the necessary circumstances on record for making out the case for grant of police assistance.
11. As held earlier, the reasons on the basis of which the impugned order dated 18-8-2003 is passed are not at all sustainable. Hence, order dated 18-8-2003 is quashed and set aside. On the request made by the Petitioners said application at Exh.43 is allowed to be withdrawn with liberty to file a fresh application. As and when such fresh application. As and when such fresh application is made, Respondent No. 1 to 3 will be at liberty to oppose the same on all permissible grounds. The learned trial judge will decide such fresh application on its own merits in accordance with law in the light of observations which are made in this judgment.
12. Rule is made partly absolute in the above terms. No order as to costs.
Parties be given copies of this order duty authenticated by the Court Sheristedar.
"It is no doubt that the Police help is an extraordinary mode or procedure to implement the execution of the decree of orders. In other words, Police help is to be regarded as an extreme step, and as such it should not be recommended unless the Court is fully convinced of the existence of a grave emergency. Therefore, a decree-holder praying for police help has to state whether such help is required either;
(1) because of apprehension of violence or obstruction from judgment-debtor himself or at his instance by others or; (ii) because of conditions of a general character such as the locality where execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution.
Thus, the special procedure for police help would not be allowed unless there are reasonable ground to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be done in disturb stage or a class of people similarly situated being likely to make common cause that the judgment-debtor can resist the execution.
Besides this, in addition to the circumstances enumerated above to grant police help the Court must be fully convinced of the existing of grave emergency and to prevent commission of cognizable offence by the judgment-debtor or on his behalf by any person or a third party."
Bombay High Court
Smt. Nirabai J. Patil vs Narayan D. Patil on 10 October, 2003
Equivalent citations: AIR 2004 Bom 225, 2004 (3) BomCR 226, 2004 (1) MhLj 1058
Bench: A Oka
1. By an order dated 16-9-2003 this Court has issued notice for final disposal of this writ petition. An Affidavit of service has been filed by the Petitioners which records that the Respondents have been served with notice of this Petition.
2. By this petition, an exception is taken to the order dated 18-8-2003 passed by the learned Civil Judge Junior Division, Kalyan below application Exh-43. By the said application, Petitioners prayed for direction that police aid should be made available for implementation of the order of temporary injunction passed by the trial Court in the said suit. The learned trial judge rejected the said application on two grounds. The learned trial judge held that Application at Exh.28 containing similar prayer has been rejected. The learned Judge also was of the opinion that there was no provision for allowing police aid for execution of interim order.
3. I have heard both the learned Counsel at length. Mr. Angal for the Petitioner submitted that Petitioners had made application at Exh.28 praying for direction to grant police aid for implementation of the order of temporary injunction. While rejecting the said application by order dated 4-5-2002, the learned Judge observed that it was for the Petitioners to independently move the police and take necessary aid. The learned Counsel pointed out that though the learned judge observed that there was no provision in C.P.C. to grant such police aid, he also observed that the police aid can be granted in exceptional cases. In view of the observations made in the said order, the Petitioner applied to the Respondent No. 4 vide his application dated 4-4-2003 for grant of police aid. In the subsequent application at Exh.43, the Petitioners pointed out that no action was taken by the police against Respondent Nos. 1 to 3 though it was brought to the notice of the Police Authorities that Respondent Nos. 1 to 3 have committed breach of order of injunction. In the said application at Exh.43, the Petitioners recorded their apprehension that without police aid, Petitioners will not be in position to protect their possession while carrying out repairs to the suit chawl. The learned Counsel relied upon the judgment of this Court Smt. Ratnabi w/o Narayanrao
Naik and Anr. v. Shri Satwarao a/o Naryanrao Naik . The learned Counsel pointed out that his Court has taken a view that Civil Court has power to grant police help for implementation or execution of decree or the order passed by the Court.
4. The learned Counsel appearing for Respondent Nos. 1 to 3 has opposed this petition. The learned Counsel contended that no case has been made out by the Petitioner for grant of police aid.
5. Section 36 of the code of Civil Procedure (hereinafter referred to as said Code) provides that the provisions of the said Code relating to execution of decree are also applicable to execution of orders in so far as they are applicable. Under the provisions of Rule 32 or Order XXi, mode is prescribed for execution of decree for injunction. In so far as decree for injunction is concerned, the same can be executed by attachment of property of the person disobeying the decree for injunction or by detention of such person or by both. Rule 2(A) or Order XXXIX of the said Code empowers the Court to penalise the person who has disobeyed the order of temporary injunction. Rule 11 of Order XXXiX of Code of Civil Procedure permits the Court to strike out defence of defendant who commits breach of an order of the Court. The object of all the said provisions is to ensure that the orders passed by the Court of law are implemented and obeyed by all concerned. Section 151 of the said Code saves inherent power to Civil court to make such orders as may be necessary for meeting the ends of justice. Some High Courts have taken a view that under Section 151 of the said Code, Court has power to direct the Police Authorities to give necessary aid for implementation or for enforcing the order of temporary injunction.
6. This Court has observed, in the case of Ratanabi v. Satwarao
"It is no doubt that the Police help is an extraordinary mode or procedure to implement the execution of the decree of orders. In other words, Police help is to be regarded as an extreme step, and as such it should not be recommended unless the Court is fully convinced of the existence of a grave emergency. Therefore, a decree-holder praying for police help has to state whether such help is required either;
(1) because of apprehension of violence or obstruction from judgment-debtor himself or at his instance by others or; (ii) because of conditions of a general character such as the locality where execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution.
Thus, the special procedure for police help would not be allowed unless there are reasonable ground to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be done in disturb stage or a class of people similarly situated being likely to make common cause that the judgment-debtor can resist the execution.
Besides this, in addition to the circumstances enumerated above to grant police help the Court must be fully convinced of the existing of grave emergency and to prevent commission of cognizable offence by the judgment-debtor or on his behalf by any person or a third party."
7. The aforesaid observations made by the learned Single Judge of this Court are very relevant for the present case. If Civil Court which has passed the order of temporary injunction takes a view that there is no power vested in the Court to direct the police to grant assistance for enforcing or for implementation of the order of temporary injunction, the very purpose of granting order of temporary injunction may be trustrated in a given case. It is the duty of every police Officer to enforce the law of the land. The duties of police officers are reflected in Section 64 and Section 66 of the Bombay Police Act, 1951. In my opinion, the view taken by the learned Trial Judge that "There is no provision for police and for execution of interim order, is totally incorrect. The learned Judge failed to appreciate that he has a power under Section 151 of the said Code to pass the order directing that police help should be made available provided facts of the case warrant passing of such order.
8. As observed by this Court in the aforesaid judgment, the grant of police aid is an extreme step and therefore order for grant of police help or police assistance cannot be made unless the Court is fully convicted about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. It is very difficult to give exhaustive list of circumstances in which the Court can exercise the said power. However, said power is to be exercised with caution and the said power can be exercised only after the Court is fully convinced of existence of grave situation warranting exercise of said power.
9. By an impugned order, the learned trial Judge has rejected the prayer made by the Petitioners is Application at Exh.43 on the ground that there is no provisions in law for grant of police help, the said view taken by the trial Judge is totally unsustainable. The learned judge has no doubt stated that in earlier application at Exh.28 similar relief has been rejected. however, that will not prevent the Petitioners from applying afresh for grant of police help if case is made out for passing such orders on the basis of events which have taken place subsequent to the passing of the order below Exh.28.
10. The learned Counsel for Petitioners has submitted that Petitioners be granted liberty to withdraw the application dated 21-4-2003 (at Exh. 43) with liberty to make afresh application for same relief. The learned Counsel submitted that the petitioners will place all the necessary circumstances on record for making out the case for grant of police assistance.
11. As held earlier, the reasons on the basis of which the impugned order dated 18-8-2003 is passed are not at all sustainable. Hence, order dated 18-8-2003 is quashed and set aside. On the request made by the Petitioners said application at Exh.43 is allowed to be withdrawn with liberty to file a fresh application. As and when such fresh application. As and when such fresh application is made, Respondent No. 1 to 3 will be at liberty to oppose the same on all permissible grounds. The learned trial judge will decide such fresh application on its own merits in accordance with law in the light of observations which are made in this judgment.
12. Rule is made partly absolute in the above terms. No order as to costs.
Parties be given copies of this order duty authenticated by the Court Sheristedar.
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