- (1.) 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 under Section 151 of the Code of Civil Procedure can issue directions to Police Officials, who are not parties to the proceeding, enjoining them to execute the orders of the civil court made interpartes or prevent the violation of such orders by the party against whom the same was passed.
(2.) 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 injunctionpassed 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, he 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 of 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 filing of the appeal by the respondent in the District Court. The learned Judge placed reliance on the judgment of this court in Sakuntala v. Sarangapani Naidu 1 . 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.
(3.) HOWEVER, learned counsel for the respondent contended that the application filed by the petitioner in the trial court under Section 151 of the Code of Civil Procedure 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.;