G. Krishnan vs Smt. Thulasi Ammal

Srinivasan, J.—An interesting question of considerable importance has arisen in this case and of late it arises often in civil courts. In short, the

question is whether a civil court in exercise of its inherent powers u/s 151 of the CPC can issue directions to Police Officials, who are not parties to

the proceeding, enjoining them to execute the orders of the civil court made inter-partes or prevent the violation of such orders by the party against

whom the same was passed. In the present case, the petitioner herein filed O.S. No. 393 of 1990 on the file of District Munsif, Madurai, for a

permanent injunction restraining the respondent herein and another from interfering with his possession and enjoyment of the suit property. He filed

I.A. No. 206 of 1990 for injunction pending disposal of the suit restraining the respondent herein from interfering with his possession. The same

was ordered after contest on 29.3.1990. It is not in dispute that the respondent has filed an appeal against the said order which is pending as

C.M.A. No. 41 of 1990 on the file of District Court, Madurai. There is however, no order of stay of the operation of the injunction order during

the pendency of the said appeal. Hence, the order of injunction passed by the District Munsif is in force. The petitioner filed I.A. No. 532 of 1990

with a prayer that the District Munsif should order police protection to him with appropriate direction to see that the order of injunction passed in

I.A. No. 206 of 1990 was not violated. In the affidavit filed in support of the application it was alleged that the respondent being a seasoned litigant

was attempting to give troubles to the petitioner and giving out openly that she would defy and disobey the order of injunction. It was also alleged

that the respondent being influential and having a backing of undesirable elements, had no respect for law and order and unless the court ordered

police protection, the respondent and her men would not allow the petitioner to peacefully enjoy the properties. The application was opposed by

the respondent on the ground that the petitioner was never in possession of the property and it was always in the enjoyment of the respondent,

who had spent huge amounts to remove the weeds and raised sugarcane. The respondent also referred to the pendency of the appeal in the

District Court against the order or injunction.

The District Munsif dismissed the application on 11.10.1990 taking the view that the order of injunction ceased to have effect on the filling of the

appeal by the respondent in the District Court. The learned Judge placed reliance on the judgment of this court in Sakuntala (died) and Others Vs.

V. Sarangapani Naidu, . The view taken by the District Munsif is clearly erroneous. He has misunderstood the ruling in the said case. The question

in that case was whether the coming into force of Tamil Nadu Debt Relief Act (40 of 1978) during the pendency of an appeal filed by the debtor

could be taken advantage by him and it was answered in the affirmative. In support of the said conclusion, this court pointed out that once an

appeal was filed, the finality of the decree was lost and the entire lis being before the appellate court, it was open to the appellate court to take note

of the subsequent event and pass an appropriate decree by moulding the relief. That ruling has nothing to do with the present case. The District

Munsif has obviously ignored the provisions of O.41, R.5 of the Code of Civil Procedure, which expressly declare that an appeal shall not operate

as a stay of proceedings under a decree or order appealed from except so far as the Appellate court may order. Thus, the only reason given by the

court below in support of its order being unsustainable, the order has to be set aside.

However, learned counsel for the respondent contended that the application filed by the petitioner in the trial court u/s 151 of the CPC for

police protection was not maintainable in law. Though the objection was raised in the counter affidavit filed by the respondent in the court below, it

was not considered by the District Munsif. As it is a question of law, there is no necessity to remand the matter to the trial court for the purpose of

considering the said question. As stated earlier, it is a question of importance and it arises very often. Hence, it requires to be considered by this

court in detail.

It should be pointed out at the outset that it is not the case of the petitioner that he approached the police with a requisition for protection against

interference by the respondent. The petitioner could well have made an application to the concerned police officials and produced before them a

copy of the order of the District Musif in I.A.No. order 41 , rule 5 206 of 1990 granting injunction in his favour against the respondent. Instead of

doing so, the petitioner chose to approach the District Munsif once again on an apprehension that the respondent would render the order of

injunction ineffective by wielding her influence and with the aid of undesirable elements. The question whether the apprehension of the petitioner is

well-founded, is one of fact. But, the petitioner has not chosen to adduce any evidence, oral or documentary, to substantiate his allegations. The

petitioner has produced copies of certain orders in earlier proceedings between the parties and is placing reliance on the same in support of his

contention that the respondent was never in possession. On the other hand, the respondent has produced copies of several documents to prove

that she has been in possession and enjoyment throughout and the petitioner was never in possession. Any discussion of the aforesaid papers filed

by the parties will impinge on the consideration of the question of possession which remains to be decided by the District Judge, Madurai, in

C.M.A. No. 41 of 1990. Hence, I do not propose to refer to any of the said papers. I would consider the question purely as one of law, without

reference to the facts of this case.

The prayer of the petitioner is for issue of a direction to the Police Officials to give protection to the petitioner and see that the order of

injunction made by the court earlier, is not violated by the respondent and her men. This is not a proceeding under Article 226 of the Constitution

of India, which will stand on an entirely different place. Under that Article, the High Court can issue a writ, direction or make an order to the State

and its officials. On that basis, a writ of Mandamus could be issued to any police officer. In A.S.C. Varadachariar v. The Commissioner of Police,

Egmore, Madras and others (1969) II M.L.J. 1, the writ petitioner prayed for issue of Mandamus directing the Commissioner of Police, Madras,

to secure to him peaceful and quiet enjoyment of the property by removing the persons who were unlawfully remaining on the property. The

Commissioner of Police raised the plea that it was within his discretion to decide whether police action was necessary, and if so, what action

should be taken. That contention was repelled by this court and it was held that the duty of the Commissioner of Police was to determine whether

the continued presence of the hut dwellers amounted to criminal trespass and if he came to that conclusion, he should evict the trespassers and give

protection to the petitioner. This court placed reliance on the following observations of Lord Denning, M.R. in R. v. Metropolitan Police

Commissioner (1968) 1 All E.R. 763:

I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land . . .In all these cases, he is

not the servant of anyone, save of the law itself. . .The responsibility for law enforcement lies on him. He is answerable to the law and to the law

alone.

The following passages in the judgment of Salmon, L.J., and Edmund Davies. L.J. respectively were also extracted and relied on:-

SALMON, L.J.:

In this court it has been argued on behalf of the Commissioner that the Police are under no legal duty to anyone in regard to law enforcement. If

this argument were correct, it would mean that in so far as their most important function is concerned, the Police are above the law and therefore

immune from any control by the court. I reject that argument. In my judgment, the Police owe the public a clear legal duty to enforce the law - a

duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently . . .For example, if, as is quite

unthinkable, the Chief Police Officer in any district were to issue an instruction that as a matter of policy the Police would take no steps to

prosecute any house- breaker, I have little doubt that any house-holder in that district would be able to obtain an order of mandamus for the

instruction, to be withdrawn.

EDMUND DAVIES, L.J.:

Carried to its logical limit, such a submission would mean that, however brazen the failure of the Police to enforce the law, the public would be

wholly without a remedy and would simply have to await some practical expression of the court''s displeasure. In particular, it would follow that the

Commissioner would be under no duty to prosecute anyone for breaches of the Gaming Acts, no matter how flagrantly and persistently they were

defied. Can that be right? Is our much-vaunted legal system in truth so anaemic that, in the last resort, it would be powerless against those who,

having been appointed to enforce it, cocked a snook at it? The very idea is as repugnant as it is startling, and I consider it regrettable that it was

ever advanced.

In a similar case in Satyanarayana Tiwari Vs. S.H.O.P.S. Santhoshanagar, Hyderabad and Others, a Division Bench of the Andhra Pradesh

High Court, allowed a writ appeal directed against the dismissal of a writ petition for issue of Mandamus against the police officers to render police

help in maintaining the petitioner''s possession of certain lands. That Bench also relied on the judgment in R. v. Metropolitan Police Commissioner

(1968) 1 All E.R. 763.

It should not be forgotten that in a writ petition under Article 226 of the Constitution of India, the Police Officials are impleaded as parties and

directions are sought against them. The basic requirements of a writ of Mandamus are that there should be a public duty on the part of the Officials

and there is failure to perform the duty in spite of their being called upon to do so. Both the requirements will be absent if in a civil proceeding, to

which the police officials are not parties, a direction is sought from the court to the Police Officials without any approach to them in the first

instance by the party who seeks relief.

A proceeding u/s 145 of the Code of Criminal Procedure will also stand on a different plane. In fact, the Supreme Court has clearly ruled in

Ram Sumor Puri Mahent v. State of U.P. and others 1985 L.W. (Crl.) 84 that there shall not be a parallel proceeding u/s 145 of the Code of

Criminal Procedure, when a civil litigation is pending for the property, wherein the question of possession is involved. It was also held that the

decree of a civil court is binding on the criminal court in a matter like that and multiplicity of litigation is not in the interest of the parties, nor should

public time be allowed to be wasted over meaningless litigation.

Thus, the question to be considered will fall within a narrow compass as to whether a civil court can issue a direction u/s 151 of the CPC to a

police official, who is neither a party to a proceeding nor one claiming under the parties.

At the outset it has to be remembered that police officials are not subordinate officials just like the members of the court staff, who can be

directed by the court to execute or carry out its orders. u/s 4 of the Tamil Nadu District Police Act 1859, the superintendence of the Police

throughout the General Police District shall vest in, and be exercised by the State Government and, except as authorised by them, under the

provisions of this Act, no person, officer or court shall be empowered to supersede or control any police- functionary, notwithstanding any

Regulation, Act or usage to the contrary. u/s 5 of that Act, the administration of the Police throughout the General Police District shall be vested in

an officer to be styled the Director-General of Police for the State, and in such superior police officers as the State Government shall deem fit. u/s

21 of that Act, it is the duty of every police officer to use his best endeavours and ability to prevent all crimes and public nuisances; to preserve the

peace; to apprehend disorderly and suspicious characters; to detect and bring offenders to justice; to collect and communicate intelligence affecting

the public peace; and promptly to obey and execute all orders and warrants law fully issued to him. Similar provisions are found in the Madras City

Police Act as regards the city of Madras, wherein the administration of the Police is vested in the Commissioner of Police for Madras. u/s 23 of the

Act, it is the duty of every Police Officer in the City to use his best endeavours and ability to prevent offences and public nuisances; to preserve the

peace; apprehend disorderly and suspicious characters; to detect and bring offenders to justice; to take charge of all unclaimed property; to seize

and impound stray cattle; to collect and communicate intelligence affecting the public peace, and promptly to obey and execute all orders and

warrants lawfully issued to him. u/s 149 of the Code of Criminal Procedure, every police officer may interpose for the purpose of preventing and

shall, to the best of his ability, prevent the commission of any cognizable offence. u/s 150 of the Code of Criminal Procedure, every police officer

receiving information of a design to commit any cognizable offence, shall communicate such information to the police officer to whom he is

subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence. Section 151 of the

Code of Criminal Procedure empowers to make arrest in order to prevent the commission of cognizable offences. Section 154 onwards deal with

information to the police relating to the commission of a cognizable offence and their powers to investigate. Under Police Standing Order 584,

investigations may be properly refused in cases clearly of a civil nature or in which the complainant is obviously endeavouring to set the criminal law

in motion to support a civil right. Thus, it is seen that elaborate procedure is prescribed with reference to criminal offences. It is also seen that the

duties of the police officers are well-defined. The Police Officers are functioning as the representatives of the State, whose primary duty is to

protect the society by preventing commission of offences and maintaining law and order. Hence, when a direction is issued to a particular police

officer, it is really a direction to the State Government to perform one of its duties or part thereof. It shall not be treated as a direction to a

subordinate official, however low his rank may be in the police force.

Even here, I would like to make it clear that a direction to a subordinate member of the staff of the civil court, such as a bailiff or amin, to

execute a decree or order with the aid of police would be entirely different from a direction to the police official himself. When a direction is given

to a subordinate member of the staff, it would only mean that the said officer of court shall apply for and obtain the assistance of the police in

accordance with the relevant provisions of criminal law. That would not tantamount to a direction to the Police official as such. In Ganga Ram Vs.

Devi Singh and Others, the decree-holder made an application u/s 151 of the CPC before the executing court stating that the men of the

judgement-debtor refused to deliver possession and as there was likelihood of a breach of peace, execution of decree should be directed with

police aid. The sale Ameen also prayed for police aid for execution of the warrant of delivery. The court passed an order that a letter may be

issued to the Superintendent of Police, Jodhpur to provide police aid to the Assistant Nazir for execution of the warrant of possession under O.21,

R.35 of the Code of Civil Procedure. The validity of the order was upheld by the High Court on revision. That was a case of a direction to the

subordinate official of the court to obtain police aid on requisition by a letter addressed to the Superintendent of Police. There is no difficulty in the

court giving such a direction to its own subordinate officials.

The relevant provisions of the CPC are found in Sections 51, 94 and 151 and O.21, R.32 and O.39, R.2A. Section 51(e) of the CPC enables

the court to order execution of the decree by delivery of property, by attachment and sale, by arrest and detention in prison, by appointing a

receiver or in any such other manner as the nature of the relief granted may require. Section 94 of the CPC empowers the court to pass certain

orders, if so prescribed, in order to prevent the ends of justice being defeated. Under clause (e) of the section, the court may make such other

interlocutory orders as may appear to be just and convenient. Section 151 of the CPC preserves the inherent powers of the court to make such

orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Reliance is placed strongly on Section 94(e)

and Section 151 of the CPC by learned counsel, whose endeavour is to sustain the maintainability of the petition for police protection. O.21, R.32

of the CPC is a specific provision prescribing the mode of execution for enforcing a decree for injunction. O.39, R.2A of the CPC provides for

punishing a party who disobeys an order of injunction made under rule 1 or rule 2, or commits breach of the terms of the orders. It is the

contention of the petitioner that the provisions for punishment of the party who violates the order of injunction will not take away the power of the

court to see that the order of injunction is enforced and the party in whose favour the order is made enjoys the benefit of it. In other words, it is

contended that an order of injunction restraining a party from interfering with the possession of another will be effective only if the court directs the

protection of such possession by the law enforcing officials, viz., the police and the provisions contained in the CPC for detention in prison of the

party against whom the order is made will not make the order of injunction effective.

Ordinarily, judgments of a civil court are binding only on the parties thereto unless they are judgments in rem. A judgment in rem is defined by

Bower as one which declares, defines or otherwise determines the status of a person or a thing, that is to say, the jural relation of a person or thing

to the world generally. Section 41 of the Indian Evidence Act enumerate four classes of judgments in rem, viz., judgments rendered in the exercise

of probate, matrimonial, admiralty and insolvency jurisdiction. Even a judgment in rem is not conclusive if it relates to a matter which need not have

been controverted or which was not material or which came collaterally into question or which was only incidentally cognizable. The principle is

that the judgement in order to be in rem binding on the world, there must be a finding on status which is not only the foundation of the judgment,

but necessary for it.

There can be no dispute whatever that an order or judgment upholding the claim of a party to be in possession of a particular property and

granting injunction restraining the opposite party from interfering with such possession, is only a judgment in personam and not a judgment in rem. It

is binding only on the parties thereto. Hence, in a suit for injunction against a particular party, the court is not entitled to pass any order as against a

stranger who has nothing to do with the parties to the suit. This salient principle has been clearly laid down by a Division Bench of this court in

Aboobucker v. Kunhamoo ILR 1958 Mad. 720: 71 L.W. 211 (D.B.). The Bench observed that its attention was not drawn to any reported case

where a person successfully claimed an injunction against one who was himself not a party to the suit or a person who did not claim under a party

to the suit during the pendency of which such an injunction was sought.

The prayer for a direction to a police official though purporting to be one u/s 151 of the Code of Civil Procedure, is really one for a mandatory

injunction against the police official directing him to do a particular act. Such a direction cannot be issued by a civil court when the police official is

not a party to the suit or proceeding, and when he is not claiming under any of the parties to the suit. Reliance was placed on the judgment of a Full

Bench in Century Flour Mills Ltd. Vs. S. Suppiah and Others, to contend that a court has inherent powers u/s 151 of the CPC to pass orders

which could set at nought the rights of third parties. The argument is clearly fallacious. In the case before the Full Bench, an order of injunction was

made by this court restraining the convening of the general body meeting of the company. In spite of the order, the meeting was held and certain

resolutions were passed. Applications were taken out to declare as void, illegal and inoperative the resolutions passed at the meeting. One of the

arguments advanced by the respondents in the application was that the order of injunction would prevail only as between the parties in court and

when third parties had acquired rights by reason of the resolutions passed at the meeting, those rights could not be disturbed even though the

meeting was held in contravention or disobedience of the order of the court. That argument was repelled by the Full Bench in the following words:

In our opinion, the inherent powers of this court u/s 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or

injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to net the wrong right and not allow

the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that

manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against

itself being stultified in circumstances like this holding that it is powerless to undo a wrong done in disobedience of the court''s orders. But in this

case it is not necessary to go to that extent as we hold that the power is available u/s 151, C.P.C.

Mr. Panchapakesa Iyer, for the respondent, however, contends that our view, as indicated above, would prevail only as between the parties in

court but when third parties have acquired rights by reason of something happening though it is in contravention or in disobedience of the order of

court, the legal position would be different. He says that since the resolutions had been passed at the meeting on 14.9.1974, which had vested

rights in third parties, it would be beyond the power of this court to make an order, which will have the effect of affecting or interfering with or

setting aside such rights in third parties. In our opinion, the question of third parties'' rights being affected does not arise in the context. We are

concerned with a meeting which had been prohibited and not with what happened at the meeting. If the meeting held was in violation of the court''s

order and the parties affected approach this court and ask for relief on the ground that what happened at the meeting would be destructive of their

standpoint, this court on a consideration of the entire circumstances and facts will have to put back the parties in the same position as they stood

prior to the holding of the meeting. That is not to say that, in doing so, the court interferes with third parties'' rights. All that this court would do in

such circumstances is that since the meeting was prohibited, but all the same it was held, in violation of the order of this court, it would refuse to

recognise the holding of the meeting as a legal one.

The ruling of the Full Bench does not in any way support the contention urged by the petitioner.

It is argued that powers of a civil court u/s 151 of the CPC are very wide and it would enable the court to issue directions to police officials in

order to give effect to its own orders and thus meet the ends of justice. Reliance is placed on the following observations of the Supreme Court in

Manohar Lal v. Seth Hiralal AIR 1926 SC 527:

The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders

necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent

power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court; it is a power inherent in the court by virtue

of its duty to do justice between the parties before it.

Further, when the Code itself recognises the existence of the inherent power of the court, there is no question of implying any powers outside the

limits of the Code.

The Supreme Court also observed in that case that inherent powers are to be exercised by the court in very exceptional circumstances for which

the Code lays down no procedure. The question before the Supreme Court was whether an injunction could be issued by a court in cases not

covered by O.39, R.1 and R.2, C.P.C., and the majority of the court answered it in the affirmative with Shah, J. dissenting. The observations of

the majority in the said judgment cannot be utilised for contending that a Civil Court can issue orders to third parties who do not claim under the

parties to the suit. Nor is the civil court empowered to treat the officials of the State as its own subordinates and direct them to execute or carry

out its orders.

There is no difficulty in accepting the contention that it is open to the civil court to issue appropriate directions to the parties to the proceedings

in order to render justice without resorting to the provisions of O.39, R.2A or O.21, R.32, C.P.C. An illustration is provided by the case in

Ayyammal and Another Vs. Thangavelu Padayachi, . In that case delivery of possession was effected in contravention of an order of stay, as the

decree-holder practised a fraud on the court by failing to disclose the information about the stay order to the executing court. It was held that the

court had perfect jurisdiction to vacate the order of delivery and direct redelivery. In Magna and another v. Rustam and another AIR 1963

Rajasthan 3 it was held that a court can grant relief by invoking the inherent power u/s 151 of the Code of Civil Procedure, in the event of

disobedience of the order of injunction and invasion of rights during the pendency of a suit. In that case, an order was passed directing the parties

to demolish the constructions which they had made in defiance of the order of temporary injunction. The validity of the order was upheld.

Cases have arisen in this court wherein the conflict between a private right upheld by the civil court and public order to be maintained by the

police officials had to be considered and it was invariably held that the powers of the police officials were not in any way fettered by the orders of

the civil court. In Sundaram Chetti and others against The Queen and Ponnusamy Chetty and others against ""The Queen"" ILR 6 Mad 203 a Full

Bench of this court observed that in affording special protection to persons assembled for religious worship or religious ceremonies, the law

pointed to congregational rather than private worship and the congregations should inform the Magistrate or Police at what hours they customarily

assemble for worship, in order that the rights of other persons may not unduly curtailed. Turner, C.J. observed thus:

The first duty of Government is the preservation of life and property, and, to secure this end, power is conferred on its officers to interfere with

even the ordinary rights of members of the community.

The order of 26th March 1859 appreciates the distinction between rights which have a primary and rights which have a secondary claim to such

protection as the Government can afford; and where the Government cannot protect both classes of rights it may and it ought to abandon the latter

to secure the former. In this view, it matters not whether the exercise of the rights of procession is of ancient usage or a novelty; the Government is

not bound to deprive some members of the community of the services of the force that is found necessary for the protection of their lives and

property to enable others to exercise a right which not only is not indispensable to life or to the security of property, but, in the case assumed,

creates an excitement which endangers both.

Reliance was placed on the above observations by another Full Bench of this court in AIR 1928 Madras 1049 In that case the dispute was

concerned with the rights of the Hindus of Nellore town to conduct procession with music past the mosques of that place. The Hindus have

obtained from a competent civil court a declaration of their right to conduct such procession subject to certain limitations. They were prohibited by

an order of the District Magistrate passed u/s 144, Criminal P.C., from taking any procession with music in any street of Nellore where there were

mosques. Mr. Ethiraj, who appeared for the petitioners conceded that he could not contend that it was the duty of the authorities who were

responsible for the preservation of the public peace in the town of Nellore to enforce a decree in all circumstances and all costs. The Full Bench

observed that it was not for the court to advise the Government what measures they should take to protect the rights of the Hindus or preserve the

public peace at Nellore and the preservation of the public peace was the function of the Government and in performance thereof it may be

necessary for them to override temporarily private rights. It was also observed that where there was a conflict between a public interest and a

private right, the former must prevail.

In Mahanth Lachman Das and Others Vs. Ramohhabila Missir and Another, it was held that the hands of the executive should not be tied by

the courts when they had been deliberately left free by the Legislature. That was a revision against an order u/s 144 of the Code of Criminal

Procedure passed by the Sub Divisional Magistrate of Arrah directing the petitioners therein to abstain from interfering with the opposite party in

removing the crops of three plots of land. The court found that the Magistrate had rightly decided that there was no bona fide dispute regarding

actual possession which warranted an order u/s 144 of the Code of Criminal Procedure.

In Murugappa v. Kuppuswami AIR 1929 Mad 212, an order u/s 144 or the Code of Criminal Procedure made by the Stationary Sub

Magistrate, Conjeevaram in respect of performance of Soorasamharam festival before the Mohambariamman temple in Ayyampet was challenged

in revision. The petitioners had earlier filed a suit in the court of the District Munsif, Madhurantakam for declaration of their right and for an

injunction restraining the counter-petitioners from interfering with the exercise of those rights. That suit was decreed by the District Munsif, which

was reversed by the Subordinate Judge, but ultimately restored by the High Court in Second Appeal. Certain observations were made by the

District Munsif and also the High Court recognising the preferential right of the petitioners to first performance of the festival though the decree did

not declare such a right. It was contended that the Magistrate should give effect to the said observations and allow the petitioners to perform the

festival before the counter-petitioners perform the same. Rejecting the said contention, the court observed thus:

I have no doubt that in exercising their powers, the authorities will pay due respect to those observations, but in doing so, there can be no question

that the paramount consideration should be that of maintenance of law and order. What has been said about decrees in the numerous decisions in

regard to these matters applies a fortiori with regard to obiter dicta of this kind. In AIR 1925 36 (Privy Council) the Privy Council, while laying

down that in India there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not

interfere with the ordinary use of the street by the public and subject to lawful directions by the Magistrate and that a civil suit for a declaration lies

against those who interfere with a religious procession or its appropriate observances, considered it necessary to direct that a declaration of that

right will be subject to the orders of the local authorities regulating the traffic, the Magistrates'' directions and the rights of the public. The question

arose before a Full Bench of five Judges of this court in Viswanadha Rao in re, 28 L.W. 406=51 Mad. 1006= AIR 1928 Mad. 1049=30 Cr.L.J.

31 F.B.) with reference to the scope and extent of orders under S.144, Criminal P.C. It was then conceded that it is not the duty of the authorities

who are responsible for the preservation of the public peace to enforce a civil court decree in all circumstances and at all costs. It was also pointed

out that the preservation of the public peace is the function of the authorities and the magistracy and in the performance of that function it may be

necessary for them to override temporarily private rights and that where there is a conflict between the public interest and a private right, the former

must prevail. The authorities are the proper judge on the question whether civil rights can be allowed to be exercised without danger to public

peace. I may also refer in this connection to a decision of the Allahabad High Court, Mohammad Jalil Khan and Others Vs. Ram Nath Katua and

Others where the Privy Council case referred to above was considered. It was clearly pointed out by Sulaiman, J. in that case that civil court have

no concern with the power of a Magistrate to issue whatever orders he considers necessary even if it restricts the ordinary right of using a public

thoroughfare, when he apprehends a danger and that the right of way over a public road must always be subject to such orders of the Magistrate.

As regards directions to be given to the police officials by the civil court to protect the possession of one party as against another private party

against whom an order of an injunction had been made by the civil court, there is a conflict of opinion among the High Courts. The High Courts of

Andhra Pradesh, Calcutta, Himachal Pradesh, Kerala and Orissa take the view that such directions can be issued by the civil court u/s 151 of the

Code of Civil Procedure. The contrary view is taken by the Allahabad High Court and the Karnataka High Court.

In Rayapati Audemma Vs. Pothineni Narasimham, the question was considered at some length by a Division Bench of the High Court of

Andhra Pradesh. The court took the view that the provisions of O.39, R. 2(3) and O.21, R.32 of the CPC were intended only for punishing the

party who violated the order of injunction and that the said rules were not the provisions for implementation of the order of injunction. Placing

reliance on the judgment of court of Appeal in R. v. Metropolitan Police Commissioner (1968) 1 All E.R. 763 and the judgment of this court in

Varadachariar v. Commissioner of Police (1969) II M.L.J. 1 the Bench observed as follows:

If the police authorities are under a legal duty to enforce the law and the public or the citizens are entitled to seek directions under Art.226 of the

Constitution for discharge of such duties by the police authorities we feel that the civil courts can also give appropriate directions under S.151,

C.P.C. to render aid to the aggrieved parties for the due and proper implementation of the orders of court. It cannot be said that in such a case the

exercise of the inherent power under S.151, C.P.C. is devoid of jurisdiction. There is no express provision in the Code prohibiting the exercise of

such a power and the court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for

enforcement of the court''s order in a lawful manner.

Referring to the provisions of O.39, R.2(3) of the Code of Civil Procedure, the Bench observed thus:

It has to be noticed that O.39, R.2(3) Civil P.C. provides only for punishment by attachment of the property or by detention in civil prison of the

person who committed breach. But it does not further provide for implementation of the order of injunction itself. O.39, R.2(3) cannot be said to

be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience

of the order. In such a case there being no other express provision in the Code for enforcement of the order, it is not only proper but also

necessary that the courts should render all aid to the aggrieved party to derive full benefits of the order. Though the order of injunction under O.

39, Civil P.C. is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the aforesaid

right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to

prevent obstruction to the enforcement of the order or to the exercise of the right which he derives under the order of court. But we do not see

why when the same person brings to the notice of the court that enforcement of the order is sought to be prevented or obstructed the court should

not exercise its inherent power u/s 151, Civil P.C. and direct the police authorities to render all aid to the aggrieved party in the implementation of

the court''s order.

A similar view was taken by the Calcutta High Court in Subol Chandra Dutta and Others Vs. Chimai Charan Nandy and Others, . When the

writ of delivery of possession issued by the executing court could not be executed by the Commissioner appointed by the court and the process

server, an application was made by the decree-holder for police help. The court ordered the same and directed the decree-holder to put in costs

for deputing one A.S.I., four Armed Constables, and one lady Police. That order was upheld by the High Court on revision as one u/s 131 of the

Code of Civil Procedure.

In Jaishi and others v. Salig Ram AIR 1981 NOOSS (Himachal Pradesh), the judgment of the Andra Pradesh High Court in Rayapati

Audemma Vs. Pothineni Narasimham, was followed and it was observed that there being no express provision in the Code for enforcement of the

order of injunction, it was not only proper but also necessary the courts should render all aid to the aggrieved party to derive full benefits of the

order.

In Saudamini Roychowdhury v. Satyendra Nath Sakar 85 Cal WN 958, an order of injunction restraining a party from proceeding with

construction work causing interference with the applicant''s possession was made and when it was disobeyed, the trial court refused to issue a

direction to the police to see that the order of injunction was not violated, but the High Court set aside the order of the trial court and directed to

pass appropriate directions upon the police as prayed for by the applicant. The judgment of the Andhra Pradesh High Court in Rayapati Audemma

Vs. Pothineni Narasimham, was relied on. A similar order was passed in Sunil Kumar Halder and Others Vs. Nishikanta Bhandari and Others, ,

when an order of injunction restraining the defendants from interfering with the possession of the plaintiff was violated.

In Bagale Prasanna Ghosh v. Islam Mallick and another 88 Calcutta Weekly Notes 266 the judgment of the Himachal Pradesh High Court in

Salig Ram''s case AIR 1981 NOC 88 (Himachal Pradesh) was followed.

In Sujit Pal Vs. Prabir Kumar Sun and Others, a Divisional Bench of the Calcutta High Court held that the police could be directed to restore

possession to the plaintiff when the defendants forcibly dispossessed the plaintiff in utter violation of an order of interim injunction passes by the

court. The Bench referred to the observations of the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, as regards

the inherent powers of court and observed as follows:

Thus it is apparent from the said observation of the Supreme Court that no technicality can prevent the court from doing justice in exercise of its

inherent power. O.39, R.2A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The

process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in O.39, R.2A is

incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. We do not think that

in such a case the court is powerless to grant to the aggrieved party in exercise of its inherent power. The very object for which O.39, R.2A has

been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent

power of the court as recognised in S.151 of the Code is in addition to the power conferred on the court under the provisions of the Code. All that

the court is concerned is to prevent abuse of the process of court and to do justice by immediately intervening under circumstances which require

such intervention by the court.

In Mohammad v. Mohammed Haji 1986 Ker LT 134 it was held that though action can be taken by the High Court for violation of the

injunction under O.39, R.2A of the Code of Civil Procedure, it is open to the court to implement its order by exercising its inherent powers under

S.151 of the CPC and give directions to the Police authorities to render aid to the aggrieved parties with regard to the implementation of the orders

of the court, or the exercise of the rights created under orders of court. The court relied on the judgment of Andhra Pradesh High Court in

Rayapati Audemma Vs. Pothineni Narasimham, .

In Kochira Krishnan Vs. Joseph Desouza, , an application under O.39, R.2A of the CPC to punish the respondent for violating an undertaking

given to the court was considered. As there were allegations against the police officials that they actively helped the respondents in violating the

undertaking, the concerned Sub Inspector of Police was directed to file an affidavit and make available the relevant records. While holding that the

party was guilty of violating the undertaking, the court recorded that the Government Pleader assured the court that the Sub Inspector had not

intended in any manner to help the party by overlooking the orders of the court or the undertaking given to the court. The court observed that in

view of the stand taken by the Government Pleader, it did not intend to pursue the matter further, as regards the acts complained of against the Sub

Inspector. But, the court made the following observations as regards the duties of the police officials on which reliance is placed by learned counsel

for the petitioner:

It must, however, be pointed out that the Sub Inspector should have been more careful in a matter like tilts. In Mathew v. Kuruvilla, 1983 Ker LT

104, I had emphasized the duty of the police not to be swayed by extraneous considerations in the discharge of their onerous and responsible

duties. In particular, the provisions of the Police Manual dealing with the principles of Police conduct had been referred to therein. A duty to

enforce the law firmly and impartially, without fear or favour, malice or vindictiveness is cast on them under the aforesaid provisions. Paragraph

87(c) of the Police Manual emphasises that ""the police should not usurp or even seem to usurp the functions of the Judiciary and sit in judgment on

cases.

The above observations do not support the contention of the petitioner that a direction could be issued by the civil court to the Police Officials to

implement its orders of injunction.

In Subal Kumar Dey Vs. Purna Chandra Giri and Others, the court appeared to have accepted the proposition of law laid down by the

Andhra Pradesh High Court in Rayapati Audemma Vs. Pothineni Narasimham, and by the Calcutta High Court in Sunil Kumar Halder and Others

Vs. Nishikanta Bhandari and Others, However, the court observed as follows:-

Inherent power is wide in its nature to protect the interest of the parties in a given case. It is not a power to be exercised for implementation of an

order of the court. Where violation of the order would be so prejudicial to a party that remedies or penalty for violation of the order available

under the statute would not be sufficient, inherent power may be exercised. Therefore, a court is to be careful before taking external help of police

for implementation of the order. The present case is not such. At least there is no finding why such drastic power to take external help is being

taken when proceeding for violation of order of injunction is pending. For this purpose also local inspection as envisaged under O.39, R.7 C.P.C.

may be material. Whether direction to the police would be given, would depend upon the facts and circumstances of the case and in the present

case. I am satisfied that the trial court has been hasty in granting prayer of the plaintiffs to give direction to the police without further materials in its

possession.

The contrary view is taken by the Allahabad High Court in Goswami Gordhan Lalji and others v. Goswami Maksudan Ballabh (ILR 40 All

648). A Division Bench of the Allahabad High Court held that it was not competent to the civil court passing a decree declaring the rights of certain

parties to the suit to conduct certain religious ceremonies and enjoining on certain other parties to the suit to refrain from interfering with celebration

of the said ceremonies to secure obedience to the decree by directing the Superintendent of Police to see that the ceremonies were carried out and

to prevent interference therewith. It was also held that it was not competent to the court to appoint a Commissioner to see that the terms of the

decree were given effect to. The relevant passage in the judgment is as follows:-

It is lastly urged that the court below was wrong in ordering the Superintendent of Police of Muttra to see that the Arti was performed by Goswami

Maksudan Ballabh and that the defendants offered no obstruction. So far as this part of the prayer in the application for execution is concerned we

do not think that the court below ought to have granted it. It had no power under the CPC to order the police to interfere in the matter. There

being a decree for a perpetual injunction against the defendants or those whom they represent, it was the duty of the defendants to carry out the

injunction, that is to say, to refrain from offering any obstruction to the performance of the office which was decreed to the decree-holder. If they

disobeyed the order of the court they were liable to the penalties mentioned in O.21, R.32, of the Code, but the court could not order the police to

see that the decree-holders performed the duties of their office without interference on the part of the defendants. If a breach of the peace was

apprehended, that was a matter for the Magistrate and the police and not for the Civil court. We accordingly set aside that portion of the lower

court''s order which directs the Superintendent of Police to order the sub-Inspector of Bindraban to have the applicant Maksudan Ballabh perform

Singar Arti"" in the temple.

The above judgment was cited before the Andhra Pradesh High Court in Rayapati Audemma Vs. Pothineni Narasimham, but the Bench refused to

agree with the reasoning.

In Narasimhappa v. Hanumanthappa 1976 (2) Kar LJ 40 S.N.C. 33 it was held that there is appropriate provision in the CPC for taking

action against persons who violate an order of injunction and the court is not right in directing the police to implement the order of injunction. It was

pointed out that the police are not the authorities to enforce the order of the court. The said Judgment was followed in Manchegowda and another

v. M. Madaiah 1987 (1) Kar LJ 19.

I am inclined to agree with the view taken by the Allahabad High Court and Karnataka High Court. I have already given the reasons therefor. I

am of opinion that a civil court cannot issue a direction to a person who is not a party to the proceeding and who is not claiming under any of the

parties to the proceeding. I am also of the view that police officials cannot be treated as members of the court staff and directed to execute or

carry out orders or decree of court. The inherent powers of a civil court preserved u/s 151 of the CPC will not enable the court to transgress the

fundamental limits of its jurisdiction. The court is entitled to pass any order to meet the ends of justice as between the parties and bind them. But,

its arms are not long enough to reach utter strangers excepting under Article 226 of the Constitution of India.

The matter has been considered in this court on two earlier occassions. In Lakshmambal v. Chinnathambi Gounder C.R.P. 1342 of 1981 -

Order dated 18.8.1981, Ratnam, J. held that the civil court was competent to give a direction to the police to protect the possession of the

petitioner, who had secured an order of injunction. The Civil Revision Petition was against an order dismissing an application filed by the petitioner

therein for police help to safeguard her possession on the strength of an order of injunction obtained by her in I.A. No. 241 of 1980 in O.S. No.

1066 of 1980 pending the Civil Revision Petition, the petitioner filed C.M.P. No. 4719 of 1981 and prayed for directions to the police to extend

necessary help to protect her possession. By order dated 8.5.1981, Balasubrahmanyan, J. passed an order directing the Officer-in-charge of the

Police Station at Vikravandi to extend the necessary help and protection to the petitioner to safeguard her possession of the suit property. The

original order of Balasubrahmanyan, J. was not available as it appears to have been destroyed by the Registry as per the Rules. The operative

portion of the order has been extracted by Ratnam, J. in his judgment dated 18.8.1981 in the Civil Revision Petition. Ratnam, J. observed as

follows:-

Having regard to the undisputed securing or an order of injunction by the petitioner in I.A. No. 241 of 1980, the direction prayed for by the

petitioner before the court below was only to protect her possession of the property, strengthened by the order of injunction granted by the lower

court and the court below was, therefore, fully competent to give the direction prayed for by the petitioner in order to effectively safeguard the

possession of the petitioner and also to see to it that its order of injunction passed in I.A. No. 241 of 1980 was obeyed. Under those

circumstances, the dismissal of the application filed by the petitioner for a direction by the court below as not maintainable cannot be sustained.

The learned Judge did not give any reason in support of his order. It does not appear from the order whether detailed arguments were advanced

before the court as has been done before me in the present case. I do not agree with the conclusion of Ratnam, J. for the reason I have already set

out.

In C.M.P. No. 352 of 1986 in A.S. No. 297 of 1980, Shanmukham, J. passed an order on 22.1.1986 granting the prayer made by the

petitioner for a direction to the Superintendent of Police Vellore and Sub-Inspector of Police, Virinjipuram, Vellore Taluk, North Arcot District to

give police aid and protection to the petitioner to enforce and implement the injunction order passed by this court on 30.10.1980 in C.M.P. No.

10914 of 1980 restraining the respondents from interfering with the petitioner''s possession and cultivation of suit properties. The learned Judge

relied on the judgment of the Andhra Pradesh High Court in Rayapati Audemma Vs. Pothineni Narasimham, . The learned Judge observed as

follows:

The powers enshrined in Section 151 Code of Civil Procedure, are rather unlimited. At any rate, the courts shall not abdicate its rights to see that

its orders are obeyed strictly according to their terms. As rightly pointed out by the Andhra Pradesh High Court, this court in exercise of the

powers u/s 151, is competent to pass any orders so that its orders are duly complied with and obeyed. In this case, the petitioner apprehends that

there will be an interference by the respondents with reference to the petitioner''s enjoyment of the properties notwithstanding the order of

injunction made by this court. According to the petitioner, such interference will prevent the petitioner from enjoying the properties. In that event,

the order passed by this court will be of no assistance to the petitioner. In other words, what the petitioner apprehends is, a breach of peace if he

were to enjoy the properties in respect of which an injunction has been granted. In the above circumstances, it is no answer to say that the

petitioner shall wait till the order is disobeyed and then resort to the remedy prescribed under O.39, R.2-A, Civil Procedure Code. What he really

wants by means of this application is that there should not be any breach of peace because, in his view, the respondents would high-handedly

interfere with his enjoyment of the properties notwithstanding the order of injunction.

With respect I do not agree with the reasoning of the learned Judge. If according to the learned Judge what was sought by the petitioner was

only prevention of breach of peace, there are sufficient provisions under the Code of Criminal Procedure to meet the situation. It is not for the civil

court to fetter the discretion of the police officials or the Magistrates in such matters. The reasoning of the learned Judge would run counter to the

principles laid down by the Full Bench decisions in Sundaram Chetti and others against The Queen and Ponnusami Chetti and others against The

Queen ILR 6 Mad 203 and AIR 1928 Madras 1049 . If on the other hand it is only a question of protecting the possession of the party

concerned, it is for him to apply to the police officials for necessary safeguards and if they fail to do their duties, he shall approach this court with a

petition under Article 226 of the Constitution of India. It is not a case for issue of directions to the police officials purporting to do no u/s 151 of the

Code of Civil Procedure.

In any event, the application before Shanmukham, J. was filed in this court u/s 151 of the CPC and the learned Judge was concerned only with

the power of this court under the said Section. That was not a case of the powers of the subordinate judiciary u/s 151 of the CPC as in the present

case before me. The inherent power of this court u/s 151 of the CPC may be wider than the inherent powers of the subordinate courts under the

said Section. It is not necessary for me to consider that question here. I am referring to that aspect of the matter only to point out that there is no

necessity for me to refer this matter to a Division Bench, as the judgment of Shanmukham, J. will not apply to the present case, even though I have

recorded my dissent from the view taken by him.

I have already given my reasons for agreeing with the view taken by the Allahabad High Court and Karnataka High Court. I am bound to

recognise and give effect to the fundamental principles set out in the two Full Bench judgments of this court referred to above. If the reasoning of

Yahya Ali, J. in Murugappa v. Kuppuswami AIR 1949 Mad 212, which was based on the judgment of the Full Bench, is applied, there is no

escape from the conclusion that the petitioner''s application in the court below was not maintainable. The Civil Revision Petition has to fail for

reasons different from that given by the trial court. It is dismissed. There will be no order as to costs.