But merely because an application for police
protection was filed only under Section 151 CPC invoking
the inherent jurisdiction, it cannot be a reason for the
High Court to reject it and hold that the application
should have been filed under Order XXI, Rule 32 CPC. The
crucial question is whether the Execution Court has
jurisdiction. That is not disputed. The only thing is that
an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See
Municipal Corporation of the City of Ahmedabad v. Ben
Hiraben Manilal1 and T. Nagappa v. Y. R. Muralidhar2). In
case, the Execution Court has the jurisdiction and has
otherwise followed the procedure under the Rules, the
action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or
whether any prejudice has been caused to him. If the
answer is in the negative, as in the instant case, the
execution must proceed. The impugned judgment is hence set
aside, the appeal is allowed and the order passed by the
Execution Court is restored.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9916 OF 2017
RAJA VENKATESWARLU Vs MADA VENKATA SUBBAIAH
Dated:JULY 31, 2017.
Citation:(2017) 15 SCC 659
Leave granted.
2. The appellants approached the Execution Court for
execution of a decree for permanent injunction granted in
O.S. No. 26 of 2001 on the file of the Junior Civil Judge,
Badvel in Andhra Pradesh. It is not in dispute that the
decree has attained finality. They sought for police
protection in the execution proceedings. However, the
1application for police protection was filed under Section
151 of the CPC. The Execution Court granted it. The High
Court has interfered with the order holding that the
application could have been filed only under Order XXI,
Rule 32.
3. We find it difficult to appreciate the stand taken by
the High Court. The decree for permanent injunction having
become final, the decree holder approached the Execution
Court by way of an application for execution (E.A. No.
64/2011 in O.S. No. 26/2001 before the Junior Civil Judge,
Badvel). No doubt, Order XXI Rule 32 provides for
execution of a decree for injunction and more specifically
under sub-rule (5) which reads :-
“(5) Where a decree for the specific
performance of a contract or for an
injunction has not been obeyed, the
court may, in lieu of or in addition to
all or any of the processes aforesaid,
direct that the act required to be done
may be done so far as practicable by the
decree holder or some other person
appointed by the Court, at the cost of
the judgment debtor, and upon the act
being done the expenses incurred may be
ascertained in such manner as the Court
may direct and may be recovered as if
they were included in the decree.”
4. But merely because an application for police
protection was filed only under Section 151 CPC invoking
the inherent jurisdiction, it cannot be a reason for the
High Court to reject it and hold that the application
should have been filed under Order XXI, Rule 32 CPC. The
crucial question is whether the Execution Court has
jurisdiction. That is not disputed. The only thing is that
an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See
Municipal Corporation of the City of Ahmedabad v. Ben
Hiraben Manilal1 and T. Nagappa v. Y. R. Muralidhar2). In
case, the Execution Court has the jurisdiction and has
otherwise followed the procedure under the Rules, the
action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or
whether any prejudice has been caused to him. If the
answer is in the negative, as in the instant case, the
execution must proceed. The impugned judgment is hence set
aside, the appeal is allowed and the order passed by the
Execution Court is restored.
5. Learned counsel for the respondent/judgment debtor
submits that there are other disputes with regard to the
same property and they have filed a suit for specific
performance.
6. Needless to say that the execution of the decree shall
not stand in the way of suit for specific performance,
1 (1983) 2 SCC 422
2 (2008) 5 SCC 633
3being tried on its own merits.
7. Pending applications, if any, shall stand disposed of.
8. There shall be no orders as to costs.
.......................J.
[KURIAN JOSEPH]
.......................J.
[R. BANUMATHI]
NEW DELHI;
JULY 31, 2017.
Print Page
protection was filed only under Section 151 CPC invoking
the inherent jurisdiction, it cannot be a reason for the
High Court to reject it and hold that the application
should have been filed under Order XXI, Rule 32 CPC. The
crucial question is whether the Execution Court has
jurisdiction. That is not disputed. The only thing is that
an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See
Municipal Corporation of the City of Ahmedabad v. Ben
Hiraben Manilal1 and T. Nagappa v. Y. R. Muralidhar2). In
case, the Execution Court has the jurisdiction and has
otherwise followed the procedure under the Rules, the
action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or
whether any prejudice has been caused to him. If the
answer is in the negative, as in the instant case, the
execution must proceed. The impugned judgment is hence set
aside, the appeal is allowed and the order passed by the
Execution Court is restored.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9916 OF 2017
RAJA VENKATESWARLU Vs MADA VENKATA SUBBAIAH
Dated:JULY 31, 2017.
Citation:(2017) 15 SCC 659
2. The appellants approached the Execution Court for
execution of a decree for permanent injunction granted in
O.S. No. 26 of 2001 on the file of the Junior Civil Judge,
Badvel in Andhra Pradesh. It is not in dispute that the
decree has attained finality. They sought for police
protection in the execution proceedings. However, the
1application for police protection was filed under Section
151 of the CPC. The Execution Court granted it. The High
Court has interfered with the order holding that the
application could have been filed only under Order XXI,
Rule 32.
3. We find it difficult to appreciate the stand taken by
the High Court. The decree for permanent injunction having
become final, the decree holder approached the Execution
Court by way of an application for execution (E.A. No.
64/2011 in O.S. No. 26/2001 before the Junior Civil Judge,
Badvel). No doubt, Order XXI Rule 32 provides for
execution of a decree for injunction and more specifically
under sub-rule (5) which reads :-
“(5) Where a decree for the specific
performance of a contract or for an
injunction has not been obeyed, the
court may, in lieu of or in addition to
all or any of the processes aforesaid,
direct that the act required to be done
may be done so far as practicable by the
decree holder or some other person
appointed by the Court, at the cost of
the judgment debtor, and upon the act
being done the expenses incurred may be
ascertained in such manner as the Court
may direct and may be recovered as if
they were included in the decree.”
4. But merely because an application for police
protection was filed only under Section 151 CPC invoking
the inherent jurisdiction, it cannot be a reason for the
High Court to reject it and hold that the application
should have been filed under Order XXI, Rule 32 CPC. The
crucial question is whether the Execution Court has
jurisdiction. That is not disputed. The only thing is that
an exact provision was not invoked. That by itself shall
not be a reason for rejecting the application (See
Municipal Corporation of the City of Ahmedabad v. Ben
Hiraben Manilal1 and T. Nagappa v. Y. R. Muralidhar2). In
case, the Execution Court has the jurisdiction and has
otherwise followed the procedure under the Rules, the
action has to be upheld. One relevant question is also
whether the judgment debtor has suffered any injury or
whether any prejudice has been caused to him. If the
answer is in the negative, as in the instant case, the
execution must proceed. The impugned judgment is hence set
aside, the appeal is allowed and the order passed by the
Execution Court is restored.
5. Learned counsel for the respondent/judgment debtor
submits that there are other disputes with regard to the
same property and they have filed a suit for specific
performance.
6. Needless to say that the execution of the decree shall
not stand in the way of suit for specific performance,
1 (1983) 2 SCC 422
2 (2008) 5 SCC 633
3being tried on its own merits.
7. Pending applications, if any, shall stand disposed of.
8. There shall be no orders as to costs.
.......................J.
[KURIAN JOSEPH]
.......................J.
[R. BANUMATHI]
NEW DELHI;
JULY 31, 2017.
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