1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6124 OF 2010 Sitaram Bhau Patare Since deceased, through L.Rs. Nanasaheb Sitaram Patare and others. ..Petitioners -VERSUS- Eknath Punja Patare Since deceased, through L.Rs. Smt.Leelabai Eknath Patare and others. ..Respondents ......... Mr.R.R. Karpe, advocate for petitioners. Mr.T.B. Adik, advocate for respondent nos.1 to 4. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 14th July, 2010. PER COURT : 1. By this petition, the petitioner challenges the order dated 25th June, 2010, rendered by the Executing Court on application below Exh.5 in Regular Darkast No.9/2010. By that order, the Executing Court granted police aid in favour of respondents-decree holders to ensure due execution of injunction decree. 2. The respondent had filed Suit (R.C.S. No.36/1985) for 2 perpetual injunction. He and the petitioners were having shares adjoining to each other in the suit land Gut No.461. The Court held that the respondent was entitled to draw water from the common well and the petitioners has no legal authority to disturb such common user of the well. The Appellate Court held that 1/4th share in the well could be utilised by the respondent (plaintiff). 3. The decree-holder-respondent filed Regular Darkast no.720/1988. At that time also he sought police aid. The request was granted. However, he could not pursue the matter further, which according to him was due to illness. The said Execution Petition was dismissed in default on 09.02.2009. The respondent- decree holder again filed second Execution Petition. He further asserted that after dismissal of his earlier Regular Darkast, on 17.01.2010 the petitioners obstructed his enjoyment of common well. He alleged that when attempt was made to install electricity motor on the common well, the petitioners abused him and threatened to mutilate his legs. Consequently, he again urged for grant of police aid in order to execute the injunction decree. Application came to be granted. 4. Mr.Karpe submits that police aid could not have been granted when second application itself is not maintainable. He 3 would further submit that the second Execution Application is not maintainable. He seeks to rely upon "Om Prakash Navani & another V/s Herebert Joseph Pereira and others" {2003(6) Bom.C.R. 170}. A Single Bench of this Court held that the party could take recourse to provisions of Order 21 Rule 32 and not under Order 21 Rules 35 and 36 in order to execute the decree for mandatory injunction. The learned Single Judge further held that such an application would not be maintainable in view of Order 21 Rule 106 of the Code of Civil Procedure. Mr.Karpe further submits that the police aid could not have been granted unless there was serious danger to life or property. He would submit that there was no reason to take extreme steps for granting of police aid. He contended that the intention of decree-holder is oblique and by putting pressure on the petitioners, the decree holder desires to take part of the land of the petitioners. It is important to notice that in case of Om Prakash Navani (cited supra), the nature of decree was quite different. It was decree for mandatory injunction. In such case, there may not be successive cause of action available. Still however, in the case of injunction decree, the cause of action may be available as and when there is obstruction or threat to the right of the decree holder. It is of common knowledge that the injunction decree is not required to be executed unless judgment-debtor offers obstructions. The execution of course is provided under 4 Order 21 Rule 32 of the Civil Procedure Code. Thus, the cause for execution of such decree may arise on multiple occasion. It is true that previous Darkast application was dismissed in default. However that does not mean waiver of any right to get decree for injunction executed. In case of "Yashodabai Ganesh Naik Gaunekar V/s Gopi Mukund Naik {2002(3) Mh. L.J. 801}", another Single Bench has taken identical view as regards to the legal position pertaining to the execution of the injunction decree. 5. So far as, the grant of police aid is concerned, it is important to notice that on earlier occasion also such police aid was granted. The petitioners did not challenge the earlier order and therefore, it was accepted position that there was possibility of some breach of peace and as such, the police aid was required by the respondents-decree holders. The application filed by the decree-holder reveals that the petitioners gave filthy abuses and also threatened to assault him and his servants, if the electricity motor would be installed on the common well. It is not necessary to try such question likewise a issue in the full fledged trial if there is prima facie material and the Executing Court is convinced that without police aid, there will not be effective execution of the decree, such help can be granted in view of Section 161 of the Civil Procedure Code. Ultimately, it is the duty of the Court to 5 ensure that command reflected in the final orders of the Court is not breached. 6. For the reasons aforestated, I do not find any substance. Hence, Petition is dismissed. (V.R.KINGAONKAR) JUDGE gas/wp6124.10