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2003 DIGILAW 1182 (MAD)

Al Fathima Munavera & Others v. S. Kandasamy

2003-07-31

S.ASHOK KUMAR

body2003
Judgment :- The petitioners are the plaintiffs in O.S.No.461 of 2002 on the file of the Principal District Munsif, Tirunelveli. The suit was decreed on 01.10.2002 granting the relief of permanent injunction against the respondent/defendant from interfering with the possession and enjoyment of the suit property. The petitioners/plaintiffs made arrangements to construct a compound wall in the suit property, but the same was effectively prevented by the men of the respondent/defendant. Therefore, the petitioners/plaintiffs filed a complaint before the police, but the police did not come to their rescue. Therefore, the petitioner filed an application E.A.No.886 of 2002 before the learned District Munsif, Tirunelveli to give a direction to the Police to give protection at the time of construction of the compound wall. The learned Principal District Munsif dismissed the same on the ground that such police protection can be granted only in case of execution of decree of mandatory injunction or specific relief. Aggrieved over the said order, the plaintiffs have filed this revision. 2. In spite of notice, the respondent did not turn up. 3. The learned Counsel appearing for the petitioner wound contend that the suit O.S.No.461 of 2002 was decreed on 01.10.2002 against the respondent restraining him from interfering with the possesosion and enjoyment of the suit property by the petitioner/plaintiff, but when the petitioners/plaintiffs went to construct a compound wall, the respondent/defendant prevented them effectively. Therefore, the petitioners/plaintiffs approached the local police, who were reluctant to interfere with the dispute. Thereafter, the petitioners/plaintiffs filed I.A.No.886 of 2002 praying the court to give a direction to police to give protection. Of course, in that application, the petitioners/plaintiffs have not mentioned the number of days for which police protection is sought for. In the grounds of revision, they have stated that police protection for ten days is sufficient to complete the construction of the compound wall. 4. In SRI-LA-SRI SIVASUBRAMNANYANANDA SWAMI VS. Of course, in that application, the petitioners/plaintiffs have not mentioned the number of days for which police protection is sought for. In the grounds of revision, they have stated that police protection for ten days is sufficient to complete the construction of the compound wall. 4. In SRI-LA-SRI SIVASUBRAMNANYANANDA SWAMI VS. SRI-LA-SRI ARUNACHALASAMY AND ANOTHER (1992 TNLJ 120 (DB)), a Division Bench of this Court has held as under:- "In 1969 (II) MLJ 1 Kailasam, J. as he then was, after referring to the above view of Lord Denning, M.R. in 1968 I All ER 763, observed (omitted)_ When the police authorities owe a legal duty to enforce law and when the public are entitled to seek directions under Art.226 of the Constitution for discharge of such duties by the Police Authorities, as pointed out by the learned Judge himself, we see no reason to hold that the civil courts cannot in an appropriate case issue directions under Sec.151 of the Code for the proper implementation of the order of injunction granted by the Court. In view of the above position, we are unable to share the view of Srinivasan, J., that a direction to the police authorities cannot be issued under Sec.151 of the Code to enforce the order of temporary injunction because the police authorities are not parties to the proceedings where an order of temporary injunction was passed. Secondly, the learned Judge has taken the view that the party who has obtained an order of injunction from a Civil Court can himself approach the police authorities directly for necessary safeguards for the purpose of enforcing the orders of injunction obtained by him. When a party himself can approach the police authorities directly for necessary safeguards for the purpose of enforcing the orders of injunction obtained by him, we do not see any reason why the court should not exercise its inherent powers under Sec.151 of the Code and direct the police authorities to implement the order of injunction passed by it, when such party who has obtained the order of injunction seeks the aid of the court for issue of necessary direction to the police authorities for the proper implementation of the order of injunction. This view of ours derive support from the decision in AIR 1971 AP 53 . This view of ours derive support from the decision in AIR 1971 AP 53 . In ILR VI Madras 203 and in 28 Law Weekly 406, the full Benches of this Court while dealing with the powers of the Police and Magistrates to enforce law and order, have taken the view that in the event of a conflict between private right declared by the Civil Court and public order, the police authorities and the Magistrates can take such steps for the preservation of public order uninfluenced by the civil court's decree or order. The full Bench in 28 Law Weekly 406 observed that where there was a conflict between public interest and private right, the former must prevail. The ratio of the above full Bench decisions has no bearing to the question which we are called upon to decide namely whether the civil court can issue directions to the police officials in order to execute the orders of civil court or implement the orders of injunction passed by the Civil Courts. With due respect to the learned Judge, the ratio of the decision in 1948 II M.L.J. 458 is wrongly applied to the facts of the case dealt with by him. In the above case, Yahaya Ali, J, was disposing of a criminal revision filed against the order passed by the Magistrate under Sec.144 Cr.P.C., prohibiting the performance of certain festival in respect of which the revision petitioners had obtained a decree for injunction. Yahaya Ali, J., observed in that context that in exercise of their power under Sec.144 Cr.P.C., the police shall have due regard to the orders of the civil courts, but, the paramount consideration should be that of maintenance of law and order. It is in that context, Yahaya Ali, J., refers to the decision in ILR 51 Madras 1006 = AIR 1928 Madras 1046. It was also pointed out by Yahaya Ali, J., that preservation of public peace is the function of the police authorities and the Magistracy and in the performance of that function it may be necessary for them, to over-ride temporarily private rights and that where there is a conflict between the public interest and a private right, the former must prevail. We must remember that in the present case and in the case dealt with by Srinivasan, J., we are not concerned with the question what the police authorities and the Magistrates should do in the event of conflict between public interest and private right, but we are concerned with the police officials in order to execute the order of civil courts or implement the orders of injunction passed by the courts. Therefore, we are unable to agree with the view taken by Srinivasan, J., in 1991 - Law Weekly 513. For the same reasons, we do not agree with the view expressed by the Allahabad High Court in the case reported in ILR Allahabad XL 648 and by the Karnataka High Court in (1976 (II) Karnataka Law Journal 40 SNC 33). In the light of the above discussion of ours, the question referred is answered as follows:- "In appropriate cases, the Civil Court has the power and is indeed under a duty, to issue suitable directions to police officials, as servants of law, to extend their aid and assistance in the execution of decrees and orders of the Civil Courts or in implementing an order of injunction passed by it." 5. As per the decision referred to above, civil court has got power to direct a police officer to give protection at the time of execution of the decree. If decrees of the Court can be violated by parties and decree-holder is not able to enjoy the fruits of the decree and he could not enjoy the same unless there is protection from police authorities, it is the duty of the Court to see that the decree granted by the Court is obeyed by the persons concerned and the decree-holder is able to enjoy the fruits of the decree. There is nothing wrong in the Civil Court directing the police to give protection to the person who has got an order of injunction in his favour. In the circumstances, the order of the learned Principal District Munsif in E.A.No.886 of 2002 in O.S.No.461 of 2002 is set aside and the police protection is granted for ten days by which time, the petitioners/plaintiffs should complete the construction of the compound wall in the property. This Civil Revision Petition is allowed.