Palaniyandi S/o. Vaiyapuri & Others v. Palaniappan S/o. Andi & Another
2005-08-17
R.BANUMATHI
body2005
DigiLaw.ai
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 30.04.1997 passed by the learned District Munsif, Kulithalai in E.A.No.272 of 1996 in E.P.No.157 of 1995 in O.S.No.324 of 1976, as stated therein.) This Civil Revision Petition is directed against the order of learned District Munsif, Kulithalai dated 30.04.1997 in E.A.No.272 of 1996 in E.P.No.157 of 1995 in O.S.No.324 of 1976 ordering Police Protection. The Third Parties / Respondents 2 to 7 are Revision Petitioners. 2. Suit in O.S.No.324 of 1976 (for Permanent Injunction) was decreed on 07.12.1977. The Decree was passed against the First Respondent / Judgment – Debtor, restraining him, his Men and Agents from interfering with the peaceful possession of the Plaintiff's enjoyment of the Suit Property. The Suit Property relates to 0.45 cents / 2.30 acres in S.No.161 Manathattai Village, Kulithalai Taluk, Trichy District. E.P.No.157 of 1995 was filed for Executing the Decree in O.S.No.324 of 1976. The Execution Petition was filed under Order XXI Rule 22 and 32 C.P.C not only against the Judgment – Debtor – Murugan, but also against Respondents 2 to 7 (who are the Revision Petitioners), as if they have violated the order of Injunction and committed Contempt of Court. Execution Petition was filed to execute the Decree that the Defendant, his Men and his Agents are restrained by means of Permanent Injunction from interfering with the peaceful possession of the Plaintiff's enjoyment of the Suit Property and to commit the Respondents in Civil Prison and such other further reliefs this Hon'ble Court deem fit under Order XXI Rule 22 and 32 C.P.C. 3. E.A.No.272 of 1996 was filed seeking for Police Protection. According to the Respondent / Decree Holder, the Respondents have trespassed into the Suit lands with their Men and harvested the Paddy crops raised by him. Though the Decree Holder has reported the unlawful acts of the Respondents to the Police, there was no action against the Respondents. Alleging that he is cultivating the Suit land and raised Paddy crops and that the Respondents are preventing him from peacefully enjoying the Suit Property and also preventing him from carrying out his agricultural operations in the Suit land, the Decree Holder filed this Application to issue direction to Kulithalai Police to provide necessary Police Protection. The Respondents have resisted the Application by filing elaborate Counter Statement. 4.
The Respondents have resisted the Application by filing elaborate Counter Statement. 4. Finding that O.S.No.324 of 1976 has been decreed in favour of the Petitioner / Decree Holder, the Executing Court found that the possession of the Plaintiff is to be presumed and on that finding ordered Police Protection, directing Kulithalai Police to give Police Protection to the Decree Holder. 5. Aggrieved over the order of Police Protection, the Third Parties / Respondents 2 to 7 have preferred this Civil Revision Petition. Learned counsel for the Revision Petitioners has submitted that the lower Court erred in ordering Police Protection. It is contended that the Execution Petition has been erroneously filed against the Revision Petitioners, who were not parties to the Suit. Drawing the attention of the Court to the description of the Suit Property, learned counsel for the Revision Petitioners further submitted that in the absence of any boundaries to the Suit Properties, the order of Police Protection cannot be effectuated. The Impugned Order is assailed contending that without going into the merits of the case, lower Court has ordered Police Protection, causing serious prejudice to the Revision Petitioners and others, who are in possession of Suit Survey No.161 Manathattai Village, Kulithalai Taluk, Trichy District. 6. The Respondent / Decree Holder has not entered appearance. His name has been printed in the Cause List. The contentious points urged by the Decree Holder / First Respondent have been taken into consideration for disposal of this Civil Revision Petition. 7. The two points arise for consideration are:- i.Whether the Execution Petition under Or.XXI Rule 22 and 32 C.P.C for Executing the Decree could be filed against the Revision Petitioners, who were not parties to the Suit? ii.Whether the case is the "appropriate case" to issue direction to the Police Officials ordering Police Protection? 8. Even at the outset, the flaw in the proceedings seeking to Execute the Decree not only against the Judgment Debtor, but also against the Revision Petitioners is to be pointed out. In O.S.No.324 of 1976, Judgment and Decree granting Permanent Injunction was passed only against the Second Respondent / Defendant – Murugan. But the Decree is sought to be Executed against the Revision Petitioners – Palaniyandi, Palanisamy, Kaliyappan, Kamaraj, Manickam, Subburathinam - who were not parties to the Suit.
In O.S.No.324 of 1976, Judgment and Decree granting Permanent Injunction was passed only against the Second Respondent / Defendant – Murugan. But the Decree is sought to be Executed against the Revision Petitioners – Palaniyandi, Palanisamy, Kaliyappan, Kamaraj, Manickam, Subburathinam - who were not parties to the Suit. The Revision Petitioners have been included as Respondents in the Execution Petition under the pretext that they are the Men and Agents of the Defendant – Murugan. From the elaborate Counter Statement filed by the Revision Petitioners, it comes to be known that the Revision Petitioners have been seriously agitating their right raising strong objection to the claim of the Decree Holder. 9. The Suit Property relates to 0.45 cents / 2.30 acres in S.No.161 Manathattai Village, Kulithalai Taluk, Trichy District. When a part of the Survey Number, out of the whole extent is shown, normally the boundaries are to be given for proper identification of the property. But, the Decree Holder / Plaintiff has not given any boundaries to the extent of 45 cents. It passes ones' comprehension as to which of 45 cents is to be taken out of the entire total extent of 2.30 acres in S.No.161. Without giving proper description of the property and its location, the Decree Holder has sought to Execute the Decree alleging that there was violation of the Decree for Permanent Injunction. When there is lack of clarity in the description of the property, the question arises how the Judgment Debtor or other Respondents be made liable for violating the order of Permanent Injunction and be committed to Civil Prison for Contempt of Court. 10. The Revision Petitioners have put forth elaborate Counter Statement resisting the claim of the Decree Holder. According to the Revision Petitioners, in the Suit S.No.161, out of the total extent of 2.29 Acres, in 1958 by the Proceedings of Trichy District Collector, a portion was ear-marked for burial ground of all the Community in the Village. Patta was granted for 50 cents in favour of one Mahamuni (representing Mutharaiyar Community), 0.74 cents in favour of one Chinna Muppan (representing Pallar Community); 0.58 cents in favour of Periyannan (representing Harijan Community). The respective Community people have been directed to enjoy those extent of property for their general Community Purposes. The Suit Property is used for celebrating the Festival and other community purposes.
The respective Community people have been directed to enjoy those extent of property for their general Community Purposes. The Suit Property is used for celebrating the Festival and other community purposes. After the death of Periyannan, "B-Memo" has been levied in the name of his Son-Palaniappan. The Harijan Community people have auctioned the land and the Income thereon is utilised for the community purposes. It is alleged that the Decree Holder has no manner of right or interest in the Suit S.No.161. In their Counter Statement, the Revision Petitioners had given boundaries for the extent of 0.58 Cents – an extent of property, which was allotted to the Harijan Community people. 11. In the light of the elaborate defence put forth by the Revision Petitioners, the lower Court ought to have held elaborate enquiry and ought to have passed a speaking order recording the reasons for ordering the Police Protection. The Impugned Order, directing Police Protection is cryptic and non-speaking. In the absence of boundaries for the Suit Property and in the light of the elaborate Counter Statement put forth by the Revision Petitioners, claiming to be in possession of the Suit S.No.161, the Impugned Order directing Police Protection would cause serious prejudice to the Revision Petitioners and to other Community People, who are alleged to be in possession of the respective portion allotted to them. 12. In ordering the matter referred, whether the Civil Courts can issue directions to the Police Officials in order to execute the order of the Civil Court to implement order of Injunction passed by the Civil Courts, in 1992 T.L.N.J 120, a Division Bench of this Court held that in exercising the inherent powers under Section 151 C.P.C, the Court can direct the Police Authorities to implement the order of Injunction passed by it. If the party seeks aid of the Court for Police Protection, the Division Bench has observed "...in appropriate cases Civil Court as the power to issue suitable directions to the Police Officials to execute the order of the Civil Court or implement the order of Injunction passed by the Civil Courts...." 13. Whether the case in hand was the appropriate case to issue such direction to the Police Officials and ordering protection is the main point arising for consideration.
Whether the case in hand was the appropriate case to issue such direction to the Police Officials and ordering protection is the main point arising for consideration. By the Impugned Order in E.A.No.272 of 1996 in E.P.No.157 of 1995 in O.S.No.324 of 1976, the learned District Munsif has passed the order Thus, by a non-speaking order, the learned District Munsif seems to have allowed the Petition ordering Police Aid. The learned District Munsif has not recorded the reasons in finding that the case was appropriate case to order such Police Protection. Judicial mind for such satisfaction is not manifested in the Impugned Order and hence the Impugned Order cannot be sustained. While granting such Police Protection, in appropriate cases, it is always necessary for the lower Courts to record the reasons as to how the case is the appropriate case to issue direction to the Police Officials and as to why the Police Protection is ordered. The Impugned Order suffers from infirmity and cannot be sustained. 14. There is no proper exercise of discretion in granting Police Aid. The lower Court has not recorded any reasons as to the necessity in ordering the Police Protection and the reasons for finding that the case in hand was appropriate case for ordering Police Protection. The Executing Court has not taken note of the elaborate counter Statement filed by the Revision Petitioners and the absence of boundaries for proper identification of the Suit Property, for which Police Protection has been ordered. The Impugned Order suffers from material irregularity and is liable to be set aside. 15. For the foregoing reasons, the Civil Revision Petition is allowed and the order of District Munsif, Kulithalai dated 30.04.1997 in E.A.No.272 of 1996 in E.P.No.157 of 1995 in O.S.No.324 of 1976 is set aside. In the circumstances of the case, there is no order as to costs.