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1984 DIGILAW 285 (PAT)

Nalini Kant Sinha v. Ajoy Krishna

1984-08-06

S.B.SANYAL

body1984
JUDGMENT : S. B. Sanyal, J. - This civil revision is by the plaintiff against an ORDER :dated the 1st August, 1983, passed by the 4th Additional Subordinate Judge, Arrah, rejecting the petition dated 22.10.1982 filed by the plaintiff-petitioner. 2. There is a suit for partition between the party and a receiver has been appointed on 11.8.1980 and the receiver took charge of the property in September, 1980. It is the case of the plaintiff-petitioner that after the receiver took charge of the property, one Anugrahit Narayan forcibly possessed a part of the property without permission and/or sanction of the receiver sometime in the year 1981. 3. The plaintiff filed an application for removal of the said trespasser Anugrahit Narayan and the Court by its ORDER :dated 27.7.1981 empowered the receiver to remove the said Anugrahit Narayan (Annexure 1 to the supplementary affidavit filed by the petitioner). The said ORDER :, however, was stayed on 28.7.1981 as the defendants intimated the Court that they propose to go to the High Court against the said ORDER :. No body moved the High Court and the ORDER :dated 27.7.1981 became final. The plaintiff thereafter filed an application for implementation of the ORDER :passed on 27.7.1981 in exercise of the powers conferred under section 151 of the Code of Civil Procedure. From the impugned ORDER :it appears that the plaintiff prayed that immediate steps be taken to prosecute the defendants and/or their hired men Anugrahit Narayan and Babban Yadav for criminal trespass and to take lawful occupation of the property in custody of the receiver. The Court below by the impugned ORDER :refused to implement the earlier ORDER :observing: "The plaintiff has invoked the provision of section 151 C.P.C. and prayed the Court to oust Shri Anugrahit Narayan from the house by the aid of police. All these things are concerned with the provision contained in C.P.C. regarding the receivership matter. There-is express provision of law in C.P.C. in this connection. There is nothing for the Court to pass any such ORDER :u/s 151 of the C.P.C. However an ORDER :dated 27.7.81 still hold good in this connection." Thereafter the Court below observed : "The petitioner has also prayed the court to take immediate steps to prosecute the defendants Anugrahit Narayan and Baban Yadav for criminal trespass and unlawful occupation. There is nothing for the Court to pass any such ORDER :u/s 151 of the C.P.C. However an ORDER :dated 27.7.81 still hold good in this connection." Thereafter the Court below observed : "The petitioner has also prayed the court to take immediate steps to prosecute the defendants Anugrahit Narayan and Baban Yadav for criminal trespass and unlawful occupation. I am unable to prosecute them as I am not in the know-how of any provision in law to prosecute in the circumstances of this case." 4. When the matter was put up before me for the first time, I called for a report on 14.5.1984 from the Advocate receiver as to whether Anugrahit Narayan came over the property with his consent and permission. The receiver was further asked to submit a report as to whether when he took charge of the pi 0perty in question as a receiver, Anugrahit Narayan was living in the house either as a tenant or as a manager. The receiver was further directed that if he liked to add anything about Anugrahit Narayan, he might do so. 5. A report from the receiver was received in this Court through the Additional Subordinate Judge, wherein the receiver has said that after six mouths of his taking charge of the properties, Anugrahit Narayan forcibly entered into the house and all his efforts to oust him failed inspite of the Court's ORDER :dated 27.7.1981. He has stated that the said Anugrahit Narayan is staying forcibly over the property not either as owner or as tenant thereof. He has further reported that he is unconnected with anyone of the parties and is not their relation. According to the plaintiff, this Anugrahit Narayan is a hired man of the defendants, and the plaintiff is apprehensive that even if a decree for partition is passed, he will not be able to gel rid of this Anugrahit Narayan who has unlawfully come over the property to obstruct the receiver in performance of his duties. 6. Ajoy Krishna, defendant No. 2 (Opposite Party No.1) has filed a caveat as well as a counter-affidavit sworn by Anugrahit Narayan Singh and made his appearance through Madan Mohan Sahai, Advocate. In the counter affidavit Anugrahit Narayan Singh claims himself to be the manager of the defendants. It has been stated that he is living in the property as manager of the defendants since 1949. In the counter affidavit Anugrahit Narayan Singh claims himself to be the manager of the defendants. It has been stated that he is living in the property as manager of the defendants since 1949. It has been further stated that it is true that the receiver was directed by the Court to remove him on 27.7.1981. He further submits that he cannot be removed from the suit premises, but it can be so done by filing a suit for eviction by the receiver. The counter affidavit further states that the Advocate receiver is in collusion with the plaintiff. 7. Admittedly, the property is custodia legis. During he said period, no person can occupy any part of the property without the consent or permission of he receiver. From the receiver’s report it is crystal clear that when he took charge of the property, Anugrahit Narayan was nowhere over the property Anugrahit Narayan, according to the receiver, came over the property roughly after six months of his taking possession of the suit property in his custody. The receiver says that it has been forcibly occupied by the said Anugrahit Narayan and all his efforts by moving the Court has not born any fruit. 8. By the impugned ORDER :the Court below has really refused to implement the ORDER :passed for removal of Anugrahit Narayan Singh as far back as on 27.7.1981. I am really surprised the way the learned Additional Subordinate Judge has acted in protecting the property in custody of one of its officers who is accountable and responsible for any loss occasioned to the property. It was the bounden duty of the Court to strengthen the hands of its officer in protecting the property from trespass and forcible possession by any intruder. Before the learned Additional Subordinate Judge, he had an earlier ORDER :of his predecessor empowering the receiver to remove Anugrahit Narayan Singh. It is surprising for court of coordinate jurisdiction that instead of implementing the ORDER :dated 27.7.1981, he glossed over the matter by creating problem for himself and assuming himself to be powerless. The ORDER :dated 27.7.1981 being final, the question whether Anugrahit Narayan Was the manager of the defendants and the receiver is in collusion with the plaintiff cannot be gone into. It cannot be further gone into whether he was over the property from before. This is only a device to reopen a closed chapter. The ORDER :dated 27.7.1981 being final, the question whether Anugrahit Narayan Was the manager of the defendants and the receiver is in collusion with the plaintiff cannot be gone into. It cannot be further gone into whether he was over the property from before. This is only a device to reopen a closed chapter. There is no substance in anyone of the allegations nor the Court below has so found even in the impugned ORDER :. Learned counsel for the opposite party No. 1 says that this Court cannot ask for Police aid to remove Anugrahit Narayan from the property. The actual remedy for the receiver is to file a suit for eviction. He further submits that section 151 of the Code of Civil Procedure does not confer power upon Court to grant Police aid to the receiver. 9. I am unable to agree with the submissions of the learned counsel for the Opposite party No.1. If it is true that there in no provision in the whole of the Code of Civil Procedure as to how the receiver's hands should be strengthened for protecting the property in his custody from trespass, illegal and wrongful possession, the inherent power of the Court will be exercised depending on the situation to make such ORDER :s to secure the ends of justice and to prevent the abuse of the process of the Court. The argument of absence of any provision in the Code of Civil Procedure in this regard is, therefore, irrelevant and meaningless. The mighty hands of law will strike at every illegality whenever and wherever it is committed and sighted. It is well settled, as held in the case of Rayapati Audemma v. Pothineni Narasimham (A.I.R. 1971 Andhra Pradesh 53 at page 57) that in ORDER :to do justice between the parties or to prevent the abuse of the process of the Court, the Civil Court has ample jurisdiction to give direction to the Police authorities to render aid to the aggrieved party with regard to the implementation of the ORDER :s of the Court or the exercise of the rights created under the ORDER :s of the Court. To ask the receiver to go for a suit for recovery of possession and eviction of Anugrahit Narayan in a regular civil suit would be failure to do justice. To ask the receiver to go for a suit for recovery of possession and eviction of Anugrahit Narayan in a regular civil suit would be failure to do justice. It would be weakening the office of receiver to perform the duties of his office as enjoined by law in administration and management of Court's property. 10. I am of the opinion that it would be an abuse of the process of the Court if the receiver is directed to institute a suit for eviction of Anugrahit Narayan. The sanctity attached to custodia legis property would be lost and defiled if a person interfering with custodia legis property is permitted for a moment to stay over the property. It is an office of Court's Officer and, therefore, the Court will be fully justified to ask its officer to get such person removed from the property with the help of• the Police. This course alone would uphold the dignity and might of Court of law. 11. The Court is empowered to remove any person from the possession of the property and commit the property to the custody of the receiver. Court is further empowered to confer all such power to the receiver for preservation and improvement of the property. The receiver has, therefore, been made responsible and accountable to the Court for any loss occasioned to the property. These powers are engrafted in the provision of ORDER :40, Rules 1 and 3. The receiver therefore, approached the Court for passing of appropriate ORDER :for implementation of the Court's earlier ORDER :. I wonder the way the Court below has dealt with the matter. 12. I, therefore, direct the Superintendent of Police, Arrah, to give police force to the receiver in removing Anugrahit Narayan Singh and his associates from the suit property with all their belongings within fifteen days from the date of receipt of a copy of this ORDER :, if in the meanwhile after passing of this• ORDER :the said Anugrahit Narayan Singh has not restored possession of the property to the receiver and vacated the premises along with his companions and his belongings peacefully. The police authorities are under a legal duty to enforce law and the law enforcement lies on them. Law demands such as action in the present case. 13. The police authorities are under a legal duty to enforce law and the law enforcement lies on them. Law demands such as action in the present case. 13. In the result, this application is al1owed and the impugned ORDER :of the Court below is set aside with the direction given above. There will be no ORDER :as to costs. Let a copy of this ORDER :be forwarded to the Superintendent of Police, Arrah, as well as to the receiver.