MANU/TN/2292/2008

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

C.R.P. (NPD) (MD) No. 1457of 2008 and M.P. (MD) No. 1 of 2008
Decided On: 30.09.2008
Appellants: A. Diravidamani
Vs.
Respondent: Chitradevi
Hon'ble Judges/Coram:
V. Ramasubramanian, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S.A. Ajmal Khan
For Respondents/Defendant: Mr. S. Meenakshi Sundaram
ORDER
V. Ramasubramanian, J.
1. "Executio est finis et fructus legis" - An execution is the end and the fruit of law. But
this Civil Revision Petition seeks to examine a larger question as to whether a decree for
permanent injunction is a mere enforceable decree and not an executable decree. It also
raises the consequential question as to whether a person, who secured a decree for
permanent injunction, is entitled to seek police protection by taking recourse to Section
151 CPC without even filing any execution petition as provided under Order XXI, Rule
32 CPC. Heard Mr.S.A.Ajmal Khan, learned counsel for the petitioner and
Mr.S.Meenakshi Sundaram, learned counsel for the respondents.
2 . The respondents herein filed a suit in O.S. No. 92 of 2005 against the petitioner
herein seeking a decree of permanent injunction restraining him from interfering with
their peaceful possession and enjoyment of the suit schedule property. After trial, the
Principal Sub Court, Tenkasi, decreed the suit by a judgment dated 29.6.2007. The
petitioner herein did not prefer any appeal and allowed the decree to attain finality.
3 . Thereafter, the respondents herein straight away filed an Execution Application in
E.A. No. 3 of 2008 on the file of the Court which passed the decree, contending that in
violation of decree of injunction, the petitioner threatened them, with his henchmen and
that a FTR was also filed and that a legal notice issued by them was also of no avail.
The said application was filed under Section 151 CPC, seeking a direction to the Deputy
Superintendent of Police, Alangulam, to render police aid for the implementation of the
decree of permanent injunction.
4. Though the petitioner filed a counter admitting the fact that the decree had attained
finality, he also contended that he did not interfere with their possession and enjoyment
of the property. The Court below, after enquiry, passed an order directing the police to
grant protection to the respondents in the event of any interference by the petitioner
with their possession of the suit property. It is against the said order that the petitioner
has come up with the present Civil Revision Petition.
5. The main contention of the petitioner is that without invoking the provisions of Order

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XXI, Rule 32 CPC, for executing the decree of permanent injunction, the respondents are
not entitled to file an application straightaway under Section 151 CPC, seeking police
protection. But the learned counsel for the respondents contends that a decree of
permanent injunction is not actually an executable decree in the strict sense of the term
and that it is only an enforceable decree. Therefore, according to the learned counsel
for the respondents, the Court which passed the decree is also entitled to see to it that
the fruits of the decree are enjoyed by the decree-holder.
6. I have carefully considered the rival submissions.
7. There cannot be a dispute about the fact that a Court which passed a decree would
have all the powers to do whatever is necessary and proper to see to it that the decree-
holder enjoys the fruits of such a decree. The power to execute, enforce or implement a
decree is a necessary corollary of the power to grant a decree. In Savitri Vs. Govind
Singh Rawat ((1985) 4 SCC 337: AIR 1986 SC 984), it has been held as follows:
"Every Court must be deemed to possess by necessary intendment, all such
powers as are necessary to make its orders effective. This principle is embodied
in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non
potest' (where anything is conceded, there is conceded also anything without
which the thing itself cannot exist). (Vide Earl Jowitt's Dictionary of English
Law, 1959 Edn., p. 1797.) Whenever anything is required to be done by law
and it is found impossible to do that thing unless something not authorised in
express terms be also done then that something else will be supplied by
necessary intendment."
In State of Karnataka Vs. Vishwabharathi House Building Coop. Society and Others
((2003) 2 SCC 412), the Supreme Court, while dealing with the scope of section 25 of
the Consumer Protection Act, relied upon the above passage and went to the extent of
holding that such power was available not only to courts, but also to statutory tribunals.
Paragraph-60 of the said decision reads as follows:-
"60. It is also well settled that a statutory tribunal which has been conferred
with the power to adjudicate a dispute and pass necessary order has also the
power to implement its order. Further, the Act which is a self-contained code,
even if it has not been specifically spelt out, must be deemed to have conferred
upon the Tribunal all powers in order to make its order effective."
8 . Therefore the power of the Civil Court to order police protection or aid to enforce
either a decree of permanent injunction or an interim order of injunction, is not in
dispute. Construing the scope of Order XXXIX vis-a-vis section 151, the Full Bench of
this Court held in Century Flour Mills Ltd Vs. S.Suppiah (1975 (II) ML J 54 = (1975) 88
L.W. 285), that Order XXXIX of the Civil Procedure Code, should not be considered as
placing any limit on the scope of the inherent power under Section 151 CPC. The Full
Bench laid down in paragraph-8 of its decision, the scope of Section 151 as follows:-
"8. In our opinion, the inherent powers of this Court under Section 151 of the
Code of Civil Procedure 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 set 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 interest of justice. Even apart from Section 151,
we should, observe that, as a matter of judicial policy, the Court should guard

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 against itself being satisfied in circumstances like this by 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 under Section 151 of the Code of Civil Procedure."
9 . There is also no dispute about the civil court's power under section 151, C.P.C, to
pass any order to meet the ends of justice. I n Sri-la-Sri Sivasubramanyananda Swami
Vs. Sri-la-Sri Arunachalasamy Chidambaram and another (1993 (I) ML J 274), the
question as to whether Civil Courts can issue directions to the police officials in order to
execute the orders of the Civil Courts or to implement the order of injunction passed by
the Civil Courts, was referred to the Division Bench. The Division Bench comprising of
V.Ratnam and S.Soiiiasundaram, JJ, held as follows:-
"21. The position of law which emerges from the principles laid down by the
decisions referred to above is this; Section 151 of the Civil Procedure Code
confers power to make such orders as may be necessary for the ends of justice
or to prevent abuse of process of Court. Every Court is constituted for the
purpose of doing justice according to law and must be deemed to possess, as a
necessary corollary, and as inherent in its very constitution, all such powers as
may be necessary to do the right and to undo the wrong in the course of the
administration of justice. As pointed out by the Apex Court of the land in
N.S.Mills Vs. Union of India (AIR 1976 SC 1152), the inherent power of the
Court has its roots in necessity and its breath is coextensive with the necessity.
Section 151 does not confer any powers, but only indicates that there is a
power to make such orders as may be necessary for the ends of justice and to
prevent the abuse of process of Court. As observed by the Supreme Court in
Monoharlal Vs. Seth Hiralal ((1962) 1 SCR (Supp.) 450, the inherent power has
not been conferred on the Court; it is a power inherent in the Court by virtue of
its duty to do justice between the parties before it. As pointed out by the
Supreme Court in Padam Sen Vs. The State of Bihar ((1961) 1 SCR 884), the
inherent powers of the Court are in addition to the powers specifically conferred
on the Court by the Code. They are complementary to those powers and
therefore, it must be held that the Court is free to exercise them for the purpose
mentioned in Section 151 of the Code, when the exercise of those powers is not
in any way in conflict with what has been expressly provided in the Code or
against the intentions of the Legislature. The language of Section 151 of the
Code is wide enough to clothe the Civil Courts with inherent powers to do the
right and undo the wrong in the course of administration of justice."
1 0 . Therefore, there is no difficulty in accepting the position that the civil court is
competent, while enforcing a decree for injunction, to order police aid or protection,
under section 151. In A1 Fathima Munavera and Others Vs. S.Kandasamy ((2003) 3 ML J
294), persons, who secured a decree of permanent injunction, were prevented by the
judgment-debtor from putting up a compound wall in the suit property. Therefore the
decree-holder filed an application as Execution Application seeking a direction to the
police to give protection. The application was dismissed on the ground that police
protection can be granted only in case of execution of decree of mandatory injunction or
specific relief. Challenging the said order, the decree-holders filed a Civil Revision
Petition. While allowing the Civil Revision Petition, S.Ashok Kumar, J., held as follows:-
"5. As per the decision referred to above, Civil Court has got power to direct a
police officer to give protection at the time of execution of the decree. If
decrees of the Court can be violated by parties and decree-holder is not able to

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 enjoy the fruits of the decree and he could not enjoy the same unless there is
protection from police authorities, it is the duty of the Court to see that the
decree granted by the Court is obeyed by the persons concerned and the
decree-holder is able to enjoy the fruits of the decree. There is nothing wrong
in the Civil Court directing the police to give protection to the person who has
got an order of injunction in his favour."
11. In Kochupennu Ambujakshi Vs. Velutha Kunju Vasu Channar (AIR 1993 Kerala 62),
a learned Judge of the Kerala High Court took an extreme view that even the High Court
would be competent to issue appropriate directions under Article 226 of the
Constitution, if a judgment-debtor in a civil action violates a decree of injunction,
provided the Court is satisfied that the ordinary civil or criminal action is not an
efficacious remedy. Paragraphs 8 and 11 of the said judgment reads as follows:-
"8. When there is threat to possession of any property the remedy available to
the party is to approach a Civil Court and get a decree for injunction restraining
the opposite party from interfering with his possession. The opposite party has
to obey the decree and in case he fails to obey it, the decree holder can get the
decree enforced by moving the Court by means of a petition under Rule 32 of
Order 21 CPC. That rule inter alia provides that when the party against whom a
decree for injunction has been passed has had an opportunity of obeying the
decree and has wilfully failed to obey it, the decree may be enforced by his
detention in civil prison or by attachment of his property or by both. By the
decree granting permanent injunction the Court only determines the status of
petitioner as the person in possession and restrains defendant from interfering
with such possession. The question of executing such a decree does not arise.
What is required is enforcement of the decree in case it is disobeyed by the
defendant. Art. 136 of the Indian Limitation Act prescribes the period of
limitation for execution of any decree other than a decree granting a mandatory
injunction or order of any Civil Court. That Article contains a proviso that an
application for enforcement or execution of a decree granting a perpetual
injunction shall not be subject to any period of limitation. Rule 32 of Order 21
enables the plaintiff-decree holder to get the decree enforced in case of
disobedience by the defendant. It would thus appear that a decree for
permanent injunction has to be enforced, but not executed. The execution of
the decree contemplated in Rule 33 of Order 21 is really in the nature of
enforcement of the decree by detention of the defendant in civil prison or by
attachment of his property or by both. The purpose of such detention is for
enforcement of the decree for injunction, the Court having a duty to see that its
decree or order is obeyed an aggrieved party can therefore move the Court
which passed the decree under the above mentioned rule to get the decree
obeyed in the manner prescribed therein. By such modes the plaintiff-decree
holder will be in a position to enjoy possession of the property in respect of
which the decree was granted in his favour."
"11. Rule 32 of Order 21 and Rule 2-A of Order 39 enable a party to get the
decree or order enforced either by attaching the properties of the judgment
debtor or by detaining him in prison. The disobedience of the decree or order
or obstruction caused to the enjoyment can thus be removed. But can such an
decree or order be enforced with the assistance of the police authorities? There
is no provision in the Code of Civil Procedure empowering the Court to grant
police aid to enforce a decree or order. But the Court has every authority to see
that its fiat runs. It is the duty of the Court to enforce its decrees and orders

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 and see that the decree-holder gets the fruits of the decree or order. In the case
of a decree for prohibitory in-junction or an order granting temporary
injunction, the same can be enforced by keeping away the obstructor or the
person who disobeys the decree or order. Under such circumstances the Court
should exercise its inherent power under Section 151 of the Code and direct the
police authorities to render assistance to the aggrieved party in order to see
that the Court's order is implemented."
12. Again in paragraph-18, the learned Judge of the Kerala High Court held as follows:-
" 18. Coming to the facts of the case petitioners seek police protection for
enforcement of the judgment Ext.P1. An application has already been filed
before the Munsiff's Court under R.32 of 0.21. An Advocate Commissioner was
appointed to assess the damages caused by respondents 1 to 4. Petitioners,
having availed of a remedy available to them under the Code of Civil Procedure,
cannot invoke the extraordinary jurisdiction of this Court under Art. 226. The
decree being one for a permanent injunction, it can be enforced only in
accordance with the provisions contained in R.32 of 0.21. But putting the
judgment-debtor in jail and attaching his properties may not be a succour to
petitioners so long as he is not in a position to enjoy his property peaceably
without interference or obstruction. For such enjoyment the decree of
permanent injunction can be enforced by the decree-holder through the officers
of the Court. Such enforcement can be done by removing any person who
causes obstruction. This is one of the modes of enforcement of a decree under
Rule 32 of Order 21, C.P.C. It is here that the assistance of the police is
required. In case the decree holder apprehends breach of the peace, the Court
has to requisition the assistance of the police in order to see that the decree
holder gets the fruits of the decree, in the present case peaceful possession of
the property on the basis of the decree. Petitioners may therefore seek
appropriate reliefs from the Court which passed the decree."
13. Thus the civil court's power to grant police aid or protection for enforcing a decree
for permanent injunction is fairly well established. But what is challenged in the present
revision is only the procedure adopted by the respondents in seeking police protection
by way of an execution application under Section 151 CPC, without even an execution
petition under Order XXI, Rule 32 CPC. This question does not appear to have been
addressed by any court so far.
1 4 . Since the question as to whether a decree for permanent injunction is only an
enforceable decree and not an executable decree and whether an execution application
can be filed under Section 151 CPC, even without an execution petition under Order
XXI, Rule 32 CPC, is of some interest and importance, I requested some of the members
of the Bar namely, Mr.M.Vallinayagam, Mr.T.V.Sivakumar, Mr.S.S.Sundar and
Mr.A.Arumugham, to assist the court. They did so with elan and their assistance was
very valuable.
1 5 . In order to resolve the issue on hand, it is necessary to refer to some of the
provisions of the Civil Procedure Code as well as the Civil Rules of Practice, dealing with
execution.
DECREE FOR PERMANENT INJUNCTION, WHETHER ENFORCEABLE OR EXECUTABLE:
16. Section 2 (2) of the Code defines a 'decree' as follows:-

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 " 'decree' means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to include the rejection of
a plaint and the determination of any question within Section 144, but shall not
include -
(a) any adjudication from which an appeal lies as an appeal from an
order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final."
17. Section 2 (3)of the Code defines a 'decree-holder' as follows:-
" 'decree-holder' means any person in whose favour a decree has been passed
or an order capable of execution has been made."
18. Section 2 (10) of the Code defines a 'judgment-debtor' as follows:-
" 'judgment-debtor' means any person against whom a decree has been passed
or an order capable of execution has been made."
The definition of the words 'decree holder' and 'judgment debtor' shows that a person in
whose favour a decree is passed, is a decree holder and a person against whom a
decree is passed, is a judgment debtor. But a person in whose favour an order (not a
decree) is passed will not be a decree holder and a person against whom an order (not
a decree) is passed will not be a judgment debtor, unless such order is capable of
execution.
19. Thus in these definitions, the Code speaks about (i) decrees and (ii) orders capable
of execution. The rider 'capable of execution' is not tagged with the word 'decree', but
tagged only with the word 'order'. Does it mean that all decrees are invariably
executable, while all orders may not be-or does it mean that executability or otherwise
has nothing to do with the formal expression of an adjudication that becomes a decree.
Even the dismissal of a suit is a decree and if such dismissal is without the award of
costs, it will nevertheless be a decree, but incapable of execution. The dismissal of a
suit without any order as to costs, would make the defendant, a decree holder, but such
a decree has nothing to be executed or enforced. Such a decree makes the defendant a
decree holder since it is passed in his favour.
20. As a matter of statutory necessity, a civil court is obliged to draft a decree in tune
with the judgment delivered. It is only a decree which is executed and not a judgment.
Section 33 of the Code makes it incumbent upon the Court (i) to pronounce a judgment
after the case has been heard and (ii) to have a decree follow such judgment.
21. All the provisions contained in Part-II of the Code (from Sections 36 to 74) relate to
execution. But the word "execution" itself is not defined either in Section 2 or in Part-II
of the Code. However, Section 51 enlists the powers of the Court to enforce execution.
It is interesting to note that the caption given to Section 51 is "powers of Court to
enforce execution". The Section reads as follows:-

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 "51. Powers of Court to enforce execution. - Subject to such conditions and
limitations as may be prescribed, the Court, may, on the application of the
decree-holder, order execution of the decree -
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any
property;
(c) by arrest and detention in prison for such period not exceeding the
period specified in Section 58, where arrest and detention is
permissible under that Section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may
require;
Provided that, where the decree is for the payment of money,
execution by detention in prison shall not be ordered unless,
after giving the judgment debtor an opportunity of showing
cause why he should not be committed to prison, the Court for
reasons recorded in writing, is satisfied --
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of me decree, -
(i) is likely to abscond or leave the local limits of the
jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was
passed, dishonestly transferred, concealed, or removed any
part of his property, or committed any other act of bad faith in
relation to his property, or
(b) that the judgment-debtor has, or has since the date of the
decree the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused
or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account.
Explanation: In the calculation of the means of the judgment-debtor for
the purposes of clause (b), there shall be left out of account any
property which, by or under any law or custom having the force of law
for the time being in force, is exempt from attachment in execution of
the decree."
2 2 . Even Section 52 of the Code, which provides the procedure for execution of a
decree against the legal representative of a deceased person, is captioned as
"enforcement of decree against legal representative". Thus, Sections 51 and 52 use the
words "execution" and "enforcement", in the same sense and not one as different or
inferior to the other. This is also confirmed by the fact that Rule 32 uses the expression
"the decree may be enforced" uniformly in respect of a decree for specific performance,

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a decree for restitution of conjugal rights and a decree for permanent injunction.
2 3 . Order XXI deals extensively with "execution of decrees and orders". Rule 10 of
Order XXI mandates the holder of a decree to apply to the Court, if he desires to
execute the decree. Order XXI, Rule 10 CPC, reads as follows:-
"10. Application for execution.-Where the holder of a decree desires to execute
it, shall apply to the Court which passed the decree or to the Officer (if any)
appointed in this behalf, or if the decree has been sent under the provisions
hereinbefore contained to another Court then to such Court or to the proper
Officer thereof."
24. Rule 11 (2) of Order XXI CPC, mandates that every application for the execution of
a decree shall be in writing, signed and verified by the applicant (or by a person
acquainted with the facts) and that such an application should contain the details listed
therein. The only exception to the above Rule is found in Rule 11 (1), which permits
oral application for execution in respect of a decree for payment of money.
25. Rule 17 of Order XXI mandates the Court, to ascertain if the requirements of Rules
11 to 14 are complied with, when an application for execution is presented. If the
requirements are not complied with, even after a return, the Court shall dismiss the
application for execution.
26. Rule 17 (4) of Order XXI requires the Court to maintain a Register in respect of the
applications admitted for execution. The said Rule allows the Court to order execution
of the decree, only thereafter.
27. Rules 30 to 36 of Order XXI prescribe the modes of execution of (i) a decree for
payment of money (ii) a decree for specific movable property (iii) a decree for specific
performance, for restitution of conjugal rights or for an injunction (iv) a decree for
execution of document or endorsement of negotiable instruments (v) a decree for
immovable property and (vi) a decree for delivery of immovable property which is in
the occupation of a tenant.
28. Rules 32 and 33 of Order XXI are of importance for the present discussion and
hence they are extracted as follows:-
"32. Decree for specific performance, for restitution of conjugal rights, or for an
injunction.--(1) Where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights or for an
injunction, has been passed has had an opportunity of obeying the decree and
has wilfully failed to obey it, the decree may be enforced in the case of a decree
for restitution of conjugal rights by the attachment of his property or, in the
case of a decree for the specific performance of a contract or for an injunction
by his detention in the civil prison, or by the attachment of his property, or by
both.
(2) Where the party against whom a decree for specific performance or for an
injunction has been passed is a Corporation, the decree may be enforced by the
attachment of the property of the Corporation or, with the leave of the Court, by
the detention in the civil prison of the directors or other principal officers
thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in

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 force for six months, if the judgment-debtor has not obeyed the decree and the
decree-holder has applied to have the attached property sold, such property
may be sold; and out of the proceeds the Court may award to the decree-holder
such compensation as it thinks fit, and shall pay the balance (if any) to me
judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of six
months from the date of the attachment, no application to have the property
sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an
injunction has not been obeyed, the Court may, in lieu of or in addition to all or
any of the processes aforesaid, direct mat the act required to be done may be
done so far as practicable by the decree-holder or some other person appointed
by the Court, at the cost of the judgment-debtor, and upon me act being done
the expenses incurred may be ascertained in such manner as the Court may
direct and may be recovered as if they were included in the decree.
Explanation.--For me removal of doubts, it is hereby declared mat the
expression "the act required to be done" covers prohibitory as well as
mandatory injunctions."
"33. Discretion of Court in executing decrees for restitution of conjugal rights.--
(1) Notwithstanding anything in Rule 32, the Could either at the time of passing
a decree against a husband for the restitution of conjugal rights or at anytime
afterwards, may order that the decree shall be executed in the manner provided
in this rule.
(2) Where the Court has made an order under sub-rule (1) it may order that, in
the event of the decree not being obeyed within such period as may be fixed in
this behalf, the judgment-debtor shall make to the decree-holder such
periodical payments as may be just, and, if it thinks fit, require that the
judgment-debtor shall, to its satisfaction, secure to the decree-holder such
periodical payments."
(3) The Court may from time to time vary or modify any order made under sub-
rule (2) for the periodical payment of money, either by altering the times of
payment or by increasing or diminishing the amount, or may temporarily
suspend the same as to the whole or any part of the money so ordered to be
paid, and again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though
it were payable under a decree for the payment of money."
29. It is interesting to note that Rules 30 to 36 dealing with several types of decrees,
are grouped together under the caption "mode of execution" indicating thereby that the
decrees covered by these rules are to be executed in the modes prescribed therein.
Since a decree for permanent injunction is covered by Rule 32, which prescribes a few
modes of execution and also since Section 51 speaks of enforcement of execution, it is
very hard to accept the contention that a decree for permanent injunction is not an
executable decree but only an enforceable decree. If a decree for permanent injunction
is not executable but only enforceable, as held by the Kerala High Court, it could not
have been grouped along with a decree for specific performance and decree for

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restitution of conjugal rights in Rule 32. Again Rule 32 (1) as well as Rule 32(2) speaks
only of enforcement of the decrees for specific performance, restitution of conjugal
rights and permanent injunction. Therefore if such a distinction is to be maintained
between enforcement and execution, even a decree for specific performance is not an
executable decree since Rule 32(1) and 32(2) uses the expression "may be enforced"
and not the expression "may be executed". Hence, with great respect, I cannot accept
the view expressed by the Kerala High Court that it is only an enforceable decree and
not an executable decree, since the Code uses both the words as synonymous.
30. The Explanation under rule 32 (5) was incorporated by the Amendment Act of 2002
since there were divergent views till then as to whether sub-rule (5) of Rule 32 was
applicable to a decree for permanent injunction. Therefore even if there was any kind of
distinction, on account of the doubt about the applicability of Rule 32(5)(before the
amendment) it got obliterated by the Explanation introduced in 2002.
31. The Black's Law Dictionary defines "execution", among other things as follows:-
"(i) the act of carrying out or putting into effect;
(ii) a Court order directing a Sheriff or other Officer to enforce a judgment;
(iii) judicial enforcement of a money judgment;
There are also other terms such as Writ of Execution, Judgment Execution and
General Execution. Black's Law Dictionary also quotes Benjamin J., Shipman in
Hand Book of Common Law Pleading as follows:-
"A Writ of Execution is an authorisation to an Executive Officer issued
from a Court in which a final judgment has been rendered for the
purpose of carrying such judgment into force and effect. It is founded
upon the judgment, must generally be conformed to it in every respect
and the plaintiff is always entitled to it to obtain a satisfaction of his
claim, unless his right has been suspended by proceedings in the
nature of an appeal or by his own agreement."
32. The Black's Law Dictionary defines even the word "Execute" to mean "to enforce
and collect on". There are also other statutes where execution of a decree is indicated
by the expression "enforcement of the decree". For example, Section 36 of The
Arbitration and Conciliation Act, 1996, speaks only of enforcement of arbitral awards.
Section 36 reads as follows:-
"36. Enforcement.-Where the time for making an application to set aside the
arbitral award under Section 34 has expired, or such application having been
made, it has been refused, the award shall be enforced under the Code of Civil
Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the
Court."
33. Apart from statutory provisions, judicial decisions also point to the above view that
I have taken. A Full Bench of the Calcutta High Court in Sreenath Roy Vs. Radhanath
Mookerjee, ((1883) ILR 9 Cal 773) held that the words "execution of the decree' mean
enforcement of the decree by what is known as by any of the "processes of execution".
Citing the above decision of the Calcutta High Court with approval, the Supreme Court
held in Anandilal Vs. Ram Narain (AIR 1984 SC 1383) as follows:-

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 "As observed by the Calcutta High Court in Sreenath Roy's case, ((1883) ILR 9
Cal 773 (supra) the words "execution of the decree" mean the enforcement of
the decree by what is known as "process of execution"."
34. In Hameed Joharan (Dead) and others vs. Abdul Salam (Dead) by LRs. and others
((2001) 7 SCC 573 = (2002-1-L.W. 442), the Supreme Court, in paragraphs-1, 2 and 9
of its judgment, held as follows:-
"The word "execution" stands derived from the Latin ex sequi, meaning, to
follow out, follow to the end, or perform, and equivalent to the French
executer, so that, when used in their proper sense, all three convey the
meaning of carrying out some act or course of conduct to its completion (vide
Vol.33 - Corpus Juris Secundum).
2. Lord Denning in Overseas Aviation Engg. (GB) Ltd. Re (1963 Ch. 24 : (1962)
3 All ER 12 : (1962) 3 WLR 594 (CA)) has attributed a meaning to the word
"execution" as the process for enforcing or giving effect to the judgment of the
Court and stated: (All ER p. 16E-I)
"The word 'execution' is not defined in the Act. It is, of course, a word familiar
to lawyers. 'Execution' means, quite simply, the process for enforcing or giving
effect to the judgment of the Court: and it is 'completed' when the judgment-
creditor gets the money or other thing awarded to him by the judgment. That
this is the meaning is seen by reference to that valuable old book Rastell
Termes de la Ley, where it is stated: 'Execution is, where judgment is given in
any action, that the plaintiff shall recover the land, debt, or damages, as the
case is; and when any writ is awarded to put him in possession, or to do any
other thing whereby the plaintiff should the better be satisfied his debt or
damages, that is called a writ of execution; and when he hath the possession of
the land, or is paid the debt or damages, or hath the body of the defendant
awarded to prison, then he hath execution.' And the same meaning is to be
found in Blackman Vs. Fysh ((1892) 3 Ch 209 : 60 L J Ch 666 : 64 LT 590 (CA))
(Ch at p. 217) when Kekewich, J. said that execution means the 'process of law
for the enforcement of a judgment-creditor's right and in order to give effect to
that right'. In cases when execution was had by means of a common law writ,
such as fieri facias or elegit, it was legal execution: when it was had by means
of an equitable remedy, such as the appointment of a receiver, then it was
equitable execution. But in either case it was 'execution' because it was the
process for enforcing or giving effect to the judgment of the Court."
"9. The word "enforce" in common acceptation means and implies "compel
observance of (vide Concise Oxford Dictionary) and in Black's Law Dictionary
"enforce" has been attributed a meaning "to give force or effect to; to compel
obedience to" and "enforcement" has been defined as "the act or process of
compelling compliance with a law, mandate or command". In ordinary parlance,
"enforce" means and implies "compel observance of. Corpus Juris Secundum
attributes the following for the word "enforce":
"Enforce.-- In general, to cause to be executed or performed, to cause to take
effect, or to compel obedience to, as to enforce laws or rules; to control; to
execute with vigor; to put in execution; to put in force; also to exact, or to
obtain authoritatively. The word is used in a multiplicity of ways and is given
many shades of meaning and applicability, but it does not necessarily imply

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 actual force or coercion. As applied to process, the term implies execution and
embraces all the legal means of collecting a judgment, including proceedings
supplemental to execution.
The past tense or past participle 'enforced' has been said to have the same
primary meaning as 'compelled'."
Thus the Courts have interpreted the expressions "execution of a decree" and
"enforcement of a decree or enforcement of execution", as synonymous to each other.
Therefore, it is futile to contend that a decree for permanent injunction is not an
executable decree but only an enforceable decree.
WHETHER E.A. MAINTAINABLE WITHOUT E.P.
35. Coming to the next issue, whether an execution application will lie independent of
an execution petition, the Civil Rules of Practice and Circular Orders issued in exercise
of the powers conferred by Section 122 of the Code of Civil Procedure, defines the word
"application" under Rule 3 (2) as follows:-
"'Application' includes execution application, execution petition, and
interlocutory application, whether written or oral."
Rule 3 (4) defines an "execution petition" as follows;-
" 'Execution petition' means a petition to the Court for the execution of any
decree or order."
Rule 3 (5) defines an 'execution application' as follows:-
"'Execution application' means an application to the Court made in execution
proceedings other than an execution petition."
Rule 3 (10) defines the word "proceedings" as follows:-
"'Proceeding' includes all documents presented to or filed in Court by any party,
or Commissioner or other Officer of Court, other than documents produced as
evidence."
Rule 3 (7) defines an 'interlocutory application' as follows:-
"'Interlocutory application' means an application to the Court in any suit, appeal
or proceeding already instituted, in such Court other than a proceeding for
execution of a decree or order."
36. Rule 139 of the Civil Rules of Practice prescribes the form in which an application
for execution shall be made as per Order XXI, Rule 11(2). Rules 146 and 147 deal with
execution applications. Rule 146 specifically deals with applications filed during the
pendency of execution petitions and it reads as follows:-
"146. Application in pending petition.-If it is necessary to make an application
in connection with a pending execution petition, otherwise than at the hearing
or any adjourned hearing thereof, the application shall be headed with the
cause title of the suit and the serial number of the execution petition and shall
also be separately numbered in each execution petition."

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37. Thus the Civil Rules of Practice make it clear that an execution application can only
arise out of an execution petition, just as an interlocutory application can arise only out
of a suit, appeal or proceeding. The definition in Rule 3(5) read with Rule 146 makes
this position very clear. Therefore, if a person files an application under Section 151
CPC without an execution petition, it will only fall under the category of Interlocutory
Application as defined in Rule 3(7) and not under the category of an Execution
Application as defined in Rule 3(5) of the Civil Rules of Practice.
38. As we have seen above, the Code of Civil Procedure mandates under Order XXI,
Rule 10 that a decree holder desiring to execute a decree should apply to the Court.
Rule 11(2) mandates that every such application should be in writing, signed and
verified by the applicant and that it should contain the details listed therein. An oral
application for execution is permitted only in respect of a decree for payment of money
under Rule 11 (1). The Court is empowered under Rule 17 to dismiss the application for
execution if the requirements of Rules 11 to 14 are not satisfied. Rule 17(4) requires
the Court to maintain a Register in respect of the applications admitted for execution
and the Court will order execution thereafter.
39. A combined reading of the above provisions of the Code with the provisions of the
Civil Rules of Practice would indicate that a person who wishes to have a decree of
permanent injunction enforced or executed (by whatever name called), may have to file
an execution petition as defined in Rule 3(4) of the Civil Rules of Practice, in the format
prescribed under Rule 11 (2) of Order XXI. If the decree holder desires to have the
decree executed by the detention of the judgment-debtor in Civil prison or by the
attachment of his property or by both, such E.P. should be under Order XXI, Rule 32(1).
On the other hand, the decree holder may even seek police aid and protection to
prevent the wilful disobedience of the decree. But he shall seek such a relief, under
Order XXI, Rule 32(5). Even if he chooses to resort to Section 151 CPC, with or without
combining Order XXI, Rule 32(5), the petition can be entertained, not as an execution
application, but only as an execution petition. Without filing an execution petition as
prescribed under Order XXI, Rule 11(2) read with Order XXI, Rule 32 (together with or
without Section 151), the decree holder cannot file an execution application.
40. Therefore, in fine, the position of law that emerges out of the above discussion can
be summarised as follows:-
(a) A decree for permanent injunction is certainly an executable decree.
(b) The holder of a decree of permanent injunction, has to necessarily file an
execution petition in the format prescribed under Order XXI, Rule 11(2), even
for seeking police aid or police protection. Without filing an execution petition,
the decree holder will not be entitled to file an execution application
straightaway.
(c) In the execution petition filed under Order XXI, Rule 11 (2) read with Rule
32, the decree holder is certainly entitled to seek police aid or protection, apart
from or even without a prayer for detention in Civil prison of the person of the
judgment-debtor or the attachment of his property.
(d) The fact that the decree holder quoted Section 151 CPC or Order XXI, Rule
32(5), is not so much material, as to grant the prayer for police aid or
protection.
(e) At his option, the decree holder may seek detention of the judgment-debtor

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 or attachment of his property in the execution petition. Pending such execution
petition, the decree holder can even file an execution application under Section
151, seeking police aid or protection. But without filing an execution petition,
the decree holder is not entitled to file an execution application.
41. Applying the above principles, if we look at the case on hand, the respondents have
straightaway filed an execution application under Section 151 CPC and the same has
been ordered by the Court below. This is procedurally incorrect. Therefore this Civil
Revision Petition is allowed and the order passed in E.A. No. 3 of 2008 in O.S. No. 92
of 2005 on the file of the Sub Court, Tenkasi, is set aside. However, the respondents
are permitted to file an execution petition in accordance with Order XXI, Rule 11 (2)
and seek the same relief for police aid and protection, either in combination with the
reliefs prescribed under Order XXI, Rule 32(1) or otherwise. Since the decree for
permanent injunction against the petitioner has already attained finality, this order shall
not be taken advantage of by the petitioner to disobey the decree of injunction.
42. The Civil Revision Petition is allowed on the above terms. No costs. Consequently
connected miscellaneous petition is closed. Before parting, I place on record my
appreciation for the assistance rendered by the members of the Bar
Messers.M.Vallinayagam, T.V.Sivakumar, S.S.Sundar and A.Arumugham.

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