Raja Venkateswarlu vs Mada Venkata Subbaiah

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9916 OF 2017

[@ SPECIAL LEAVE PETITION (C) NO.32606 OF 2014]

RAJA VENKATESWARLU & ANR. APPELLANT(S)

VERSUS

MADA VENKATA SUBBAIAH & ANR. RESPONDENT(S)

J U D G M E N T

KURIAN, J.

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

Signature Not Verified decree has attained finality. They sought for police Digitally signed by NARENDRA PRASAD Date: 2017.08.09 12:44:17 IST protection in the execution proceedings. However, the Reason: 1 application 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

2 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

3 being 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.

4 ITEM NO.5 COURT NO.6 SECTION XII-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 32606/2014

(Arising out of impugned final judgment and order dated 28-03-2014 in CRP No. 4987/2013 passed by the High Court of A.P. at Hyderabad)

RAJA VENKATESWARLU & ANR. Petitioner(s)

VERSUS

MADA VENKATA SUBBAIAH & ANR. Respondent(s)

Date : 31-07-2017 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MRS. JUSTICE R. BANUMATHI

For Petitioner(s) Mr. M. Vijaya Bhaskar, AOR

For Respondent(s) Mr. Sadineni Ravi Kumar, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is allowed in terms of the signed judgment.

(NARENDRA PRASAD) (RENU DIWAN) COURT MASTER (SH) ASST. REGISTRAR

(Signed “Reportable” Judgment is placed on the file)

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