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2014 Supreme(Online)(KER) 12751
HIGH COURT OF KERALA
ASHOK BHUSHAN, CJ, A.M.SHAFFIQUE, J
T A ILLYAS – Appellant
Versus
ABDULLAKUNHI – Respondent
WRIT PETITION (CIVIL) 23326/2012
A civil court decree must be enforced, and police are obligated to assist in restoring possession if violated by unauthorized occupants.
Headnote:
Mandamus - Seeking police protection - IPC Sections 441, 442; Civil Procedure Code - Court emphasized the execution of civil court decrees and police's duty to assist in restoration of possession.
Fact of the Case:
The petitioner obtained a decree for possession against the respondents, but they trespassed post-delivery. Petitioner sought police protection to regain possession after no action was taken by police for reported trespass.
Finding of the Court:
The court found that the respondents unlawfully re-entered the property post-decree. It confirmed the validity of the petitioner's decree and indicated that a wrongly trespassed property permits police intervention to restore possession.
Issues: Whether the court can direct police protection for the execution of a civil decree when respondents have unlawfully occupied property post-decree.
Ratio Decidendi: The court ruled that it can order police protection to restore possession when a decree from a civil court has been issued and unlawfully violated by parties who had been evicted.
Final Decision: Writ petition allowed; police directed to assist in restoring possession to the petitioner.
J U D G M E N T
Shaffique,J This writ petition is filed seeking for a writ of mandamus directing respondents 2 and 3 to provide adequate police protection to the life of the petitioner and his property covered by Exts.P1 to P3 judgments and for a direction to respondents 2 and 3 to evict respondents 4 to 6 from the building covered by Ext.P4 execution proceedings.
2. The facts involved in the above writ petition are as under:
The petitioner filed a suit O.S.No.406/1996 against party respondents 4 to 6 for recovery of possession and damages for use and occupation before the Munsiff Court, Kasargode. The suit was decreed by judgment dated 16/03/2004 directing the party respondents 4 to 6 herein to surrender vacant possession of A schedule house to the W.P.C.No.23326/2012 2 plaintiff within one month from the date of decree and also to pay Rs.50/- per month as damages for use and occupation till date of such surrender. Respondents 4 to 6 preferred an appeal as A.S.No.78/2004 before the Subordinate Judges Court, Kasargode and by judgment dated 15/02/2007, the appeal came to be dismissed confirming the judgment and decree of the trial court. Respondents 4 to 6 further preferred a second appeal R.S.A.No.797/2007 before this Court and by judgment dated 21/10/2009, this Court dismissed the second appeal. Pursuant to the dismissal of the second appeal, the petitioner preferred Execution Petition No.255/2009 before the Munsiff's court, Kasargode. The Court directed delivery of property. The description of property to be delivered is shown as building bearing No.XII/297 of Kumbala Grama Panchayath situated in RS No.98/2A1 of Bambrana village of Kasaragod Taluk and District. By Ext.P4, the property was taken delivery by the petitioner as evident from the delivery receipt and delivery account prepared by the concerned officer in the presence W.P.C.No.23326/2012 3 of witnesses. Delivery was effected on 10/08/2010. It is the contention of the petitioner that after taking delivery of the property, taking advantage of the absence of the petitioner, respondents 4 to 6 trespassed into the building, unlawfully opened the lock and occupied the same. Petitioner submitted Ext.P5 representation to the 2nd respondent on 24/08/2012 complaining about the trespass into the building by respondents 4 to 6 after the property was taken delivery by the petitioner through a decree of civil court. Since no action has been taken by the police, the writ petition is filed. According to the petitioner, respondents 4 to 6, having been evicted by due process of law, they have no right to trespass into the building and thereafter occupy the same which clearly amounts to offences under Sections 441 and 442 of the Indian Penal Code and the police is bound to evict them and restore possession to the petitioner.
3. Statement is filed by the 3rd respondent stating that petitioner along with the Ameen had gone to the property for implementing the order of the Munsiff's court on W.P.C.No.23326/2012 4
10/08/2010. Only symbolic possession of the property was taken over, since some political leaders and social activists interfered in the issue when they were trying to physically evict the respondents. Hence a settlement was arrived at with the petitioner and he agreed not to evict respondents 4 to 6 from the premises. The mediators persuaded the petitioner for not insisting for physical delivery of the property since the 5th respondent was an 80 year old lady. It is stated that the judgment of the Munsiff's court has not been implemented physically.
4. Counter affidavit is filed by the 3rd respondent on
17/06/2013 in which the Sub Inspector of Police has reiterated the facts mentioned in the statement filed earlier. According to him, the provisions of Sections 441 and 442 of IPC has no application, as they continued in possession. 5. Counter affidavit is filed by respondents 4 to 6 in which it is inter alia stated that the delivery effected is only a paper delivery or symbolic del
