Without resorting to the execution of a decree under Order XXI Rule 32 of CPC, protection as to possession of the property cannot be granted by a Court.

In the Matter of Sri. H. Dyamanagouda v Patil Eshwara Gowda decided by the Karnataka High Court on 05.10.2023. Neutral Citation: 2023:KHC:36114

FACTS

The Plaintiff in Suit No. O.S.No.120/1990 obtained a decree of perpetual injunction against dispossession otherwise than in due course of Law in respect of the subject property against the Defendant.

The Defendant thereafter filed a suit for possession of the subject property against the Plaintiff. In the said suit, the Plaintiff filed an application u/s 151 of CPC for police protection on the basis of the previously obtained decree of perpetual injunction. The said application was allowed by the Civil Judge and against the same, the Defendant filed a writ petition before the Karnataka High Court.

It was the case of the Defendant that the application could not be allowed since the Plaintiff could not seek Police assistance to implement the decree granting perpetual injunction, but the Plaintiff would be allowed to file for execution of the decree.

OBSERVATION AND ANALYSIS

The High Court of Karnataka observed that the Trial Court had erred in allowing the application since the Plaintiff had a decree granting them perpetual injunction against dispossession otherwise than in due course of Law in their favour, and therefore the Plaintiff should have resorted to the execution of the Decree under Order XXI Rule 32 of CPC.

The High Court stated that the Plaintiff should have sought protection of property through enforcement of decree but under separate proceedings under Order XXI Rule 32 of CPC rather than through an application.

Thus, the Writ Petition was allowed and the Order of the trial court allowing the application was set aside while dismissing the application.