Radheshyam Shaw Vs. the State of West Bengal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/920278
SubjectCivil
CourtKolkata High Court
Decided OnJun-30-2011
Case NumberW.P.No.10289(W) of 2011
JudgeJayanta Kumar Biswas . J.
ActsCode Of Civil Procedure (CRPC) 1908- Order 39 Rule 1, 2 Section 151; Constitution Of India - Article 226
AppellantRadheshyam Shaw
RespondentThe State of West Bengal and ors.
Appellant AdvocateMr. Nilanjan Bhattacharjee; Mr. Sanjoy Karar, Advs
Respondent AdvocateMr. Ashoke Banerjee, Adv
Cases ReferredOrs. v. Swami Dharmananda Theertha Pader
Excerpt:
1. the petitioner in this art.226 petition dated june 27, 2011 is seeking enforcement of an order dated june 3, 2011 (at p.63) passed in t.s. no.63 of 2011 instituted by him in the 7th court of the civil judge (jr. div.), 2. howrah against the private respondent for declaration and injunction. 3. in the pending suit the petitioner has claimed that using a part of the property he is entitled to enjoy as a tenant, the private respondent, the owner of a neighbouring property, started erecting certain unauthorised constructions.  the petitioner filed an application under o.39, rr.1 and 2 of the code of civil procedure, 1908. the civil court passed an order dated april 28, 2011 (at p.57) directing the private respondent (the defendant in the suit) to maintain “status quo in respect of its nature, character and possession of the suit property.” 4. seeking an order directing the officer in charge of batra police station to enforce the order dated april 28, 2011 the petitioner filed the application under s.151 of the code. allowing such application the civil court passed the order dated june 3, 2011 directing the officer in charge of the police station “to see that the principle defendant do not violate the order dated 28/4/2011.” 5. now alleging that the officer in charge of the police station has not done anything to see that the order dated april 28, 2011 was not violated by the private respondent, the petitioner has brought this petition; and relying on p.r. murlidharan & ors. v. swami dharmananda theertha pader & ors., (2006) 4 scc 501, his counsel has argued that seeking enforcement of the order of the civil court the petitioner is entitled to approach the high court under art.226. 6. mr banerjee, government pleader, has questioned the maintainability of the petition. he has said that seeking execution of the order of the civil court the petitioner is not entitled to approach the high court under art.226. he has further said that if anyone has violated the orders of the civil court, then, instead of approaching the writ court, the petitioner ought to have filed appropriate contempt application before the civil court. 7. in my opinion, nothing in the decision cited to me applies to this case that has been instituted seeking execution of an order of the civil court passed allowing an application under s.151 of the code of civil procedure, 1908. an order of the civil court is not to be executed by the high court under art.226, it is to be executed by the civil court that passed it.   8. in the name of police inaction the order passed by the civil court is not to be enforced by the writ court. the civil court passing the order possesses the requisite power to execute its own order. it is not for the writ court to examine whether there is any element of truth in the petitioner’s allegation that the officer in charge of the police station has not taken steps for ensuring that the order of the civil court dated april 28, 2011 was not violated by the private respondent. 9. for these reasons, the petition is dismissed. 10. no costs. certified xerox.
Judgment:

1. The petitioner in this art.226 petition dated June 27, 2011 is seeking enforcement of an order dated June 3, 2011 (at p.63) passed in T.S. No.63 of 2011 instituted by him in the 7th Court of the Civil Judge (Jr. Div.),

2. Howrah against the private respondent for declaration and injunction.

3. In the pending suit the petitioner has claimed that using a part of the property he is entitled to enjoy as a tenant, the private respondent, the owner of a neighbouring property, started erecting certain unauthorised constructions.  The petitioner filed an application under O.39, Rr.1 and 2 of the Code of Civil Procedure, 1908. The Civil Court passed an order dated April 28, 2011 (at p.57) directing the private respondent (the defendant in the suit) to maintain “status quo in respect of its nature, character and possession of the suit property.”

4. Seeking an order directing the officer in charge of Batra police station to enforce the order dated April 28, 2011 the petitioner filed the application under s.151 of the Code. Allowing such application the Civil Court passed the order dated June 3, 2011 directing the officer in charge of the police station “to see that the principle defendant do not violate the order dated 28/4/2011.”

5. Now alleging that the officer in charge of the police station has not done anything to see that the order dated April 28, 2011 was not violated by the private respondent, the petitioner has brought this petition; and relying on P.R. Murlidharan & Ors. v. Swami Dharmananda Theertha Pader & Ors., (2006) 4 SCC 501, his counsel has argued that seeking enforcement of the order of the Civil Court the petitioner is entitled to approach the High Court under art.226.

6. Mr Banerjee, Government Pleader, has questioned the maintainability of the petition. He has said that seeking execution of the order of the Civil Court the petitioner is not entitled to approach the High Court under art.226. He has further said that if anyone has violated the orders of the Civil Court, then, instead of approaching the Writ Court, the petitioner ought to have filed appropriate contempt application before the Civil Court.

7. In my opinion, nothing in the decision cited to me applies to this case that has been instituted seeking execution of an order of the Civil Court passed allowing an application under s.151 of the Code of Civil Procedure, 1908. An order of the Civil Court is not to be executed by the High Court under art.226, it is to be executed by the Civil Court that passed it.  

8. In the name of police inaction the order passed by the Civil Court is not to be enforced by the Writ Court. The Civil Court passing the order possesses the requisite power to execute its own order. It is not for the Writ Court to examine whether there is any element of truth in the petitioner’s allegation that the officer in charge of the police station has not taken steps for ensuring that the order of the Civil Court dated April 28, 2011 was not violated by the private respondent.

9. For these reasons, the petition is dismissed.

10. No costs. Certified xerox.