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 decree  has  attained  finality.  They  sought  for  police protection  in  the  execution  proceedings.  However,  the

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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

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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 Manilal  1 and T. Nagappa v. Y. R. Muralidhar  2). 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

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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.

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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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