Dismissed

Bonakurthi Sanjay and 2 others v. State of Telangana and 7 others

Telangana HC3 Jan 2024WP/3975/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking police protection to safeguard possession of land under a permanent injunction decree. Relying on Supreme Court precedents, the Court concluded that CPC execution remedies under Order XXI Rules 16 and 32 are the appropriate forum for the petitioners, who are subsequent purchasers from the decree holder, relegating them to file an application in the

What did the court decide?

Writ petition dismissed; petitioners directed to file appropriate execution application under Order XXI Rules 16 and 32 CPC in the competent Civil Court.

Bonakurthi Sanjay and 2 others Vs State of Telangana… — Property and Title | Telangana HC (2024)

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[^32e6 ]

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HIGH COURT FOR THE STATE OF^TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE THIRD DAY OF JANUARY TWO THOUSAND AND TWENTY^FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE^{C.V.BHASKARREDDY}

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WRlT PETITION NO: 3975 OF²⁰²³

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Between:

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Bonakurthi Sanjay, S/o^{B.Gangadhar, Aged 33 years, Occ. Govt.Employee,} R/o H.No.10-18, Vidhyanagar^{Colony,Pothireddypallyvillage,Sangareddy} Mandal and District.

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Bonakurthi Sandeep, S/o^{B.Gangadhar,Aged 35 years, Occ. Software} Engineer, R/O H.No.10-18,^{VidhyanagarColony,Pothireddypally village,} Sangareddy Mandal and^District.

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Bonakurthi Sarala Rani,^{W/oB.Gangadhar,Aged 57 years,Occ. House Wife,} Ri,/o H.No.10-18, Vidhyanagar^{Colony,Pothireddypallyvillage,Sangareddy} lvlandal and District

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.....pETrroNERS

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ANO

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1 State of Telangana, Home^{Department, Rep. by its Prl.Secretaryto} Government, Secretariat,^Hyderabad.

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The Director General of Police,^{Telangana, Hyderabad.}

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3 The Superintendent of Police,^{Sangareddy District, Sangareddy.}

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4 The Station House Officer, Kandi^{Police Station, Sangareddy District.}

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5 M. Yadagiri, S/o Late Narsaiah,^{aged about 51 years, Road Roamer,} F/o.H.No.5-28l1 , Kandi^{villageand Mandal, Sangareddy District.}

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6 Mohd. Quthbuddin, S/o^{late Tajuddin, aged about 60 years, Occ: business,} Rl/o H.No.3-9-1/fu4, Rahamath^{Nagar, Sadasivapet townand Mandal,R R'} district.

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7 Chandra Shekar Rao,^{Major, Occ. Advocate, Rl/o Housing Board Colony,} Behind and B Guest House,^{Sangareddy' Sangareddy District'}

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B Chenchula Naidu, Major,^{Occ. Advocate, R/o Housing Board Colony, Behind} R and B Guest House, Sangareddy,^{Sangareddy District.}

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.....RESPONDENTS

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Petition under Article²²⁶ of^{the constitutionof lndiapraying that in the} circumstances stated in the^{affidavit filedtherewith,the High court may be} pteased to issue a writ of Mandamus^{or any other appropriatewrit, order or} direction, declaring the^{action of the respondents1 to 4 herein not providing} Police^protection to^{safeguard our possessionover the land bearing} Sy.No.771lE2 admeasuring^{an extentof Ac.0.31gts situated at Kandi villageand} Gram Panchayat, Kandi Mandal,^{Sangareddydistnct,for whichour vendorfiled a}

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Suit bearing O.S.No.55/2017 on the file of the Special Judge for trial^{of offences} under the Scheduled Castes and Scheduled Tribes^(Prevention of Atrocities)^Act, 1980 cum V Addl. Sessions Judge, Medak at Sangareddy against^the respondents 5 and 6 herein for grant of perpetual injunction and obtained decree of permanent injunction vide Judgment and decree daled 91212018,^{which has} become final, as no appeal is filed against the said order, as illegal and arbitrary and contrary to the dicta laid down by this Hon'ble Court in Satyanarayana^Tiwari vs S.H.O., P.S. Santhoshanagar, dated. 14th June, 1982 reported in AIR¹⁹⁸² AP 394 (Division Bench) and for a consequential direction to the respondents¹ to 4 to grant them Police^protection to safeguard our^possession over the^land bearing Sy.No.771lE2 admeasuring an extent of Ac.0.31^gts situated^{at Kandi} village and Gram Panchayat, Kandi Mandal, Sangareddy district^pursuant to^the decree granted by the Civil Court in O.S.No.55/2017, dated 912120l|8^{against the} respondents 5 and 6 herein.

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|.A.NO:1 OF 2023

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Petition Under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be^pleased to direct the respondents 1 to 4 to grant us Police^protection to safeguard our possession over the land bearing Sy.No.771lE2 admeasuring an extent of Ac.0.31 gts situated at Kandi village and Gram Panchayat, Kandi Mandal, Sangareddy district^pursuant to the decree^granted by the Civil Courtⁱⁿ O.S.No.55/2017, dated 9l2l211B against the respondents 5 and 6 herein, pending disposal of the writ petition.

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Counsel for the Petitioners : SRI S.RAMA MOHAN RAO

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Counsel for the Respondent Nos.1 to 4 : AGP FOR HOME

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Counsel forthe Respondent Nos.5 to 8 : --

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The Court made the following ORDER

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THE HON,BLE^{SRI JUSTICE C'V.BHASI{ARREDDY}

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WRIT PETITION^{No.3975 of2023}

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ORDER:

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This Writ Petition,^{under Article 226 of the Constitutionof}

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India, is hled^{by the petitioners seeking the followingrelief:}

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" ....to^{issue a Witof Mandamus or dng otherappropiateutit'orderor} direction, decLaing^{the action of the respondents1 to 4 hereinnot} prouiding Poltce^{p:rotectionto safeguard our possession ouer the land} 7,earing"Sy.No.7i1/^{E2 od^.rurringan extentof Ac 0'31 gts situated at} ionaiuitiage and^{GramPanchdgat,KandiMandal"S.ang-areddgdistict'} ior uthich iur^uendor filed^{a Suitbeaing o.S No'55/2o17on the file of} 'the Spectat Judge foi tial of offences under the Scheduled Castes aru7 in i"tea TibLs'@reuenion^{ofAtrocities)Act, 1980atm V Addl'} ir."io* Judge,^{Medakat Songareddgagainst the re-spondents5 and6} irein for {rant^{of perpetual injunctionand obtaineddecreeof} pernonlnt iijunctioi^{uideJudgment anddecree} -doted .9'2'2018'^rtthich 'l-" b.co^" finol, as no appeal is fted against the ,said order' as illegal and arbitrary^{and contrary to the dicta laid doun bg thisHon'bleCourt} ii Sotgonoigona^{TiLtaius S'H.O.,PS santhoshanagar,ddted: 14t,'} Jun",igAZ ieported^{in AIR 1982 AP 394 (Duision Bench) an'dfor a} cinsequ"ndal -d.irection b tfle respondents 1 to 4 to -grant them PoLice piot".ho" b safeguard.^{our possess,ion} -oy?'^{tto.. land beaing} 'W.uo.zzl/ az admJasuring an extent of Ac'o 31 gts situdted at Kandi -iltoge and Gram Panciagat, Kandi Mandal, Sanqareddg distict puriuont to the^{d-euee grantedbg tlte Ciuil Court in O'S'No'55/2017'} dated 9-2.2018^{cLgainstthe respondents5 and 6 herein'' '"}

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It is the case of^{petitioners that originally Smt'Mallepally} Narsamma,^{was the owner and possessor of property admeasuring} Ac.0-3lgts in^{Sy.No.771lE2, situated at Kandi Village and Mandal'} Sangareddy. It is^{further case of the petitioners that when the} respondent Nos.S^{and 6 herein interferedwith the possession of} said Mallepally Narsamma,^{she filed a s.uituide O'S'No'55 of 2017} on the file of the Special^{Judge for trial of offencesunderthe} Schedule$^{€astes and Scheduled Tribes(Preventionof Atrocities)}

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Act, 198O-cum-V Additional Sessions Judge, Medak at Sangareddy, seeking perpetual injunction and the said suit was decreed vide judgment and decree dated 09.02.201g granting perpetual injunction restraining the respondent Nos.5 and 6 herein from interfering with the peaceful possession and enjoyment of said Mailepally Narsamma over the subject property. As the respondent Nos.5 and 6 herein did not prefer any appeal, the said judgment and decree has become final. It is further case of the petitioners that they purchased the subject propert5z from said smt.Mallepally Narsamma and others under registered sale deed dated 19.OS.201g bearing document No.laZ2O/20lB and possession was also delivered to them.

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The learned counsel appearing for the petitioners has vehemently contended that even after passing of the judgment and decree dated Og.O2.2Olg in O.S.No.SS of 2OlZ in favour of smt'Mallepafly Narsamma, vendor of the petitioners, the respondent Nos.5 and 6 are interfering with the possession of the petitioners over the subject property. When the petitioners approached respondent No.4 and sought police aid to safeguard their possession, the police refused the petitioners, request on the premise that there is no police protection order in their favour from the Competent Court.

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Per contra, the learned Government^{Pleaderfor Home} appearing for respondent Nos. 1 to 4 has^{submittedthat except} approaching the police, the^{petitionershave not obtainedany} orders either from the Court of the^{Special Judge for trial of} offences under the Scheduled Castes and^{ScheduledTribes} (Prevention of Atrocities) Act, 1980-cum-V Additional^Sessions Judge, Medak at Sangareddy,^{which has passed the judgment and} decree dated 09.O2.2OI8 in O.S.No.55^{of 2017 or from this Court} granting police protection. Since there was no^{specific direction} from the competent civil Court, the^{respondents-policehave not} acceded the request of the^petitioners.

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5. In Kanwar Singh Saini as Hlgh Court of Delhtl,^tl:e

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Hon'b1e Apex Court observed as follows:

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"17. Appltcation under Order 39 Rule 2A CPC lies only^where disobedience/ breach of on injunction^{granted or order complained} of utas one thot is granted bA th.e court und.er Order 39^Rutes1 and 2 CPC, uthich is naturallg to ensure during^{the pendencg of} the suit. Houeuer, once a suit is decreed, the inteim^order, if^ang, merges into the final order. No littgant can deiue ang^benefit from mere pendency of case in a court of laut, os the inteim order ahuags merges in tle final order to be passed in the case and if th.e case is ultimately dismisse4 tlrc inteim ord.er stands nullified automaticollg.

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In case there is a gieuance of non-compliance uith the terms of th.e decree passed in ttle ciuil suit, the remedy auailable to th.e aggieued p"rn{* b approach the execution court und-er Order

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'^{(2012)4 scc 3oz}

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21 Rule 32 CpC uhtch prouid.es Jor elaborate proceedings in uhich the parties can add.uce their euidence and. can examine and cross examine the uitnesses as opposed to the proceed.itTgs tn contempt which are summary in nature. Application und.er Ord.er 39 Rute 2_ A CPC is not maintainable once the suit stood decreed. I.aut does nol permit to skip the remedies auailable under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court h/us to exercise its discretion under the 1971 Act uthen an elfectiue and altematiue remed.g is not auailable to the person concerned. Thus, tuhen the matter relates to the infingement of a decree or decretal order embodies nghtg as between the parttes, it is not expedient to inuoke and exercbe contempt jurisdictton, in essence, as a mode of exeanting the d.ecree or merelg because other remedies mag take time or are more circumloaltory in character. Ttus, the uiolation of permanent injunction can be set ight in executing the proceedings and. not the contempt proceedings. There is a complete follac! in the argument that the prouisions of Order 39 Rule 2-A CpC uould also include the case of uiol<ttion or breach of permanent injunction granted at the time of passing of the decree."

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6- In RaJa Venkateslrrlarlu q.nd arnother as. Mada Venkata Subbaiah d.nd another2, the Hon,ble Apex Court while dealing with the similar issue, upheld the orders passed by the Executing court granting police protection under section r 51 of c.p.c for implementation of injunction decree stating that it is not necessary that the person seeking police protection must file an application only under Order XXI Rule 32 of CpC.

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'z 1Z.otl1^{ts Supreme} Court Cases 659

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7. In the case of Ghan^{Shgam Das a' AnantKumar Sinhas'}

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white dealing with the^{provisionsof the CPC relating to execution of}

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decrees and orders,^{the Hon'ble Apex Court observedas under:}

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"So far the^{question of executabilitgof a decreeis concented' the} Gui nocedire^{Codeiontainselaborateand exhaustiue prorasions} jor dealtng uith tt in all its aspects' The numerous rules^{of order} 'XXI of tni Code take care of different situalionE proui.d-ing eJfectiue n*.ldi.t rrot onlg^{to judgment-debtors and decree-holdersbut also} to claimant obieitori^{as- tne case mag be' In an exceptio-nal case'} ihere prouisiins^{are rendered incapableof ginngrelief to an} igg".rLa partv^{in adeqtate meo.sureand appropiate time' the} iii-., i*'a^{rigular suii in the ciuil court The remedy underthe} Cirit Pro""dur.'^{Codeis of supeiorjudtcial quality than uhatis} oenerallu auailable under^{other statutes,and the Jud'gebeing} "entrustJd" exclusiuelg with administration of iustice, is expected to do betier.'

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In the instant case,^{the petitioners have purchasedthe subject} property from the^{decreeholder in O'S No 55 of 2Ol7 under a} registered sale deed^{and the possession of the subject propertywas} also delivered to^{them. It is settled law that subject to satisfying the} requirements under^{Order XXI Rule16 CPC, any personclaiming} property from the Decree^{Holder is entitledto file an application} seeking to execute^{the decree. A personwho is neither a decree-} holder nor has a right^{to execute a decree, cannot applyfor} execution of decree. A^{specific procedure has been prescribed} under the CPC for enforcement^{or giving effect to a judgment or} order of Court. Execution^{is the enforcement of decrees and orders} by the process of the^{Court,so as to enablethe decree-holderto} realise the fruits of the decree. In^{the instantcase,the petitioners}

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I (t991) 4 scc 379

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have filed the present',vrit petition seeking to direct the respondent Nos.1 Lo 4 to provide police protection to safeguard their possession over the subject property by implementing the judgment and decree, daLed O9.O2.20I'8 passed in O.S.No.SS of 2017 by the learned Special Judge for trial of offences under the Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act, 1980-cum-V Additional Sessions Judge, Medak at Sangareddy. In the affidavit hlcd accompanying the writ petition, the petitioners have stated that the respondent Nos.s and 6 are interfering with their possession over the subject property. Since the petitioners herein are claiming that they have purchased the property from the decree holder, subject to fulfilling the conditions laid down in Order XXI of CPC, they are entitled to seek execution of the decree granted in favour of their vendor by fiting an appropriate application before the concerned Court.

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It is pertinent to state that if the competent Civil Court fails to grant police aid, then the Writ petition filed under Article 226 of the Constitution of India would remain effective in appropriate situations. The rclief 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

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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 XXXX Rule 24 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 15 i CPC from the cornpetent Civil Court. In the^present case, since there is a specific remedy available under Order XXI Rules 16 and 32 of CPC, the petitioners have to avail such remedy, if they feel that unofficial respondents are interfering with their possession or if there is any disobedience or breach of the judgment and decree. The issue with regard to maintainability of the Execution Petition by the subsequent^purchaser from the Decree Holder is no longer res integra. As the said issue was already decided by the Hon'ble Supreme Court in Valshno Deri ConstructTon dnd others as, tlnlon oJ Indla^(UOI) and other#.

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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 09.02.2018 passed in O.S.No.SS of 2Ol7 by the^learned Special Judge for trial of offences under the Scheduled Castes^and

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o AtR 2o2 t sc 5309

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Scheduled Tribes (Prevention of Atrocities) Act, 19g0-cum_V Additional Sessions Judge, Medak at Sangareddy. However, the petitioners are at libert5r to fire an appropriate apprication before the competent Civil Court, in accordance with law. If such an application is filed, the learned Speciar Judge for trial of offences under the Scheduled castes and Scheduled rribes (prevention of Atrocities) Act, 1980-cum-V Additional Sessions Judge, Medak at Sangareddy, shall dispose of the same, in accordance with law, as expeditiously as possible, preferably, within a period of two (2) months from the date of hling of such application.

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