Nallathambi vs The Superintendent of Police and Others

Markandey Katju, C.J.—This writ appeal has been filed against the impugned order dated 15-7-2004 of the learned single Judge.

The appellant has filed the writ petition, praying for a Writ of Mandamus directing the Superintendent of Police, Cuddalore to grant police

protection for the property in dispute and award adequate compensation.

It appears that the appellant obtained a decree for possession and title in O.S. No. 625 of 1992 from the Court of District Munsif, Cuddalore

as against the fifth respondent. Learned counsel for the Government stated that the property in question belongs to the Government. If that is so, in

our opinion, the Government was a ''necessary party'' to the suit but the Government was not made a party in the said suit. Hence, the decree

obtained by the appellant is not binding on the Government. In this situation, if the appellant is allowed to execute the decree against the

Government, it will lead to strange consequences. For instance, if a property belongs to ''C'' but ''A'' files a suit against ''B'' claiming to be the

owner of the said property and the suit is decreed then certainly ''A'' cannot pray that the decree should be executed against the real owner ''C''.

On the other hand, if ''A'' is permitted to execute the decree against ''C'', that will lead to collusive suits and all kinds of shady and illegal

transactions. Admittedly, the property in dispute belongs to the Government and the appellant did not implead the Government as a party to the

civil suit and, therefore, the decree obtained by him in the civil suit is not binding and cannot be executed against the Government. Hence, there is

no question of appellant''s claiming compensation against the Government nor of providing police protection to the appellant. It seems to us that the

appellant wants to grab government land by this device of getting a decree without impleading the real owner.

That apart, in our opinion, when a suit is decreed, the course of action open to the appellant is to execute the decree under Order XXI Rule 32

or Order XXI Rule 35 C.P.C. before the appropriate civil court and not by filing a writ petition under Article 226 of the Constitution. It is well-

settled that this Court under Article 226 of the Constitution is not an executing court. The writ petition is, therefore, also liable to be dismissed on

the ground of alternative remedy.

There is no force in the appeal. The appeal is therefore dismissed. Connected WAMP No. 7801 of 2004 is closed.