A decree for permanent injunction is an executable decree

Citation

CDJ 2008 MHC 4934

A.Diravidamani vs Chitra Devi and others

Head Note

Civil Procedure Code - Order 21 Rule 32, Section 51, 151 - Civil Rules of Prac­tice - Rule 139, 146, 147 - Whether a decree for permanent injunction is a mere enforceable decree and not an executable decree - Whether a person, who secured a decree for permanent injunction, is entitled to seek police protection by taking recourse to Section 151 CPC without even filing any execution petition as provided under Order XXI, Rule 32 CPC - A decree for permanent injunction is certainly an executable decree - The holder of a decree of permanent injunction, has to necessarily file an execution petition in the format prescribed under Order XXI, Rule 11(2), even for seeking police aid or police protection. Without filing an execu­tion petition, the decree holder will not be en-titled to file an execution application straightaway - In the execution petition filed under Order XXI, Rule 11(2) read with Rule 32, the decree holder is certainly entitled to seek po­lice aid or protection, apart from or even without a prayer for detention in Civil prison of the person of the judgment-debtor or the at­tachment of his property - The fact that the decree holder quoted Section 151 CPC or Order XXI, Rule 32(5), is not so much material, as to grant the prayer for police aid or protection - At his option, the decree holder may seek detention of the judgment-debtor or at­tachment of his property in the execution pe­tition. Pending such execution petition, the decree holder can even file an execution ap­plication under Section 151, seeking police aid or protection. But without filing an execution petition, the decree holder is not entitled to file an executive application - The respondents have straightaway filed an execution application under Section 151 CPC and the same has been ordered by the Court below. This is proce­durally incorrect. Therefore this Civil Revi­sion Petition is allowed and the order passed in E.A.No.3 of 2008 in O.S.No.92 of 2005 on the file of the Sub Court, Tenkasi, is set aside. However, the respondents are permitted to file an execution petition in accordance with Order XXI, Rule 11(2) and seek the same relief for police aid and protection, either in combination with the relief prescribed under Order XXI, Rule 32(1) or otherwise. Since the decree for permanent injunction against the petitioner has already attained finality, this order shall not be taken advantage of by the petitioner to disobey the decree of injunction.

Para 28 to 31, 40 to 42

Cases Referred:
1. Savitri Vs. Govind Singh Rawat (1985) 4 SCC 337: AIR 1986 SC 984
2. State of Karnataka Vs. Vishwab­harath, House Building Coop. Society and Others (2003) 2 SCC 412
3. Century Flour Mills Ltd Vs. S.Suppiah 1975 (II) MLJ 54 = (1975) 88 L.W. 285
4. Sri-la-Sri Sivasubramanyananda Swami Vs. Sri-la-Sri Arunachalasamy Chidarnbaram and another 1993 (I) MLJ 274
5. N.S. Mills Vs. Union of In­dia AIR 1976 SC 1152
6. Mano­harlal Vs. Seth Hiralal (1962) 1 SCR (Supp.) 450
7. Padam Sen Vs. The State of Bihar (1961) 1 SCR 884
8. Al Fathima Munavera and Others Vs. S.Kandasamy (2003) 3 MLJ 294
9. Kochupennu Ambujakshi Vs. Velutha Kunju Vasu Channar AIR 1993 Ker­ala 62
10. Sreenath Roy Vs. Radhanath Mookerjee, (1883) ILR 9 Cal 773
11. Anandilal Vs. Ram Narain AIR 1984 SC 1383
12. Hameed Joharan (Dead) and oth­ers vs. Abdul Salam (Dead) by LRs. and oth­ers (2001) 7 SCC 573 = 2002-1-L.W. 442

Comparative Citations:
2008 (4) LW 470, 2008 (8) MLJ 218