Moidu v. Parthasarathy — 1990 DIGILAW 353 (KER)

ORDER K.P. Balanarayana Marar, J. 1. Revision arises from an order in execution. First respondent obtained an order against respondents 2 and 3 in a rent control petition filed in 1983. The order was confirmed in appeal and revision. A petition for execution was filed by the first respondent wherein delivery was ordered. Against that order 2nd respondent filed a revision before this court which was dismissed. A revision was filed by the 3rd respondent before District Court, Palghat which also was dismissed. Revision petitioner filed a suit before Munsiff', Court. Palghat for a declaration that the order in the rent control petition is null and void and for a prohibitory injunction seeking to restrain the decree holder from executing the order. A petition was moved therein for a temporary injunction which was dismissed by the Munsiff's Court. An appeal against that order is pending before District Court, Palghat. In the meantime the decree holder filed a petition for police aid to effect delivery. Revision petitioner lodged a caveat before the executing court seeking an opportunity to be heard before passing orders granting police aid for delivery of the property Notice of the petition filed by the decree holder was therefore given to the caveator. he filed a counter statement and opposed the petition. After hearing both sides the executing court granted police aid. That order is under challenge in this revision. 2. Has the executing court power to render police aid to the amin to effect delivery of possession of property? If so, what are the circumstances in which such aid can be granted? Are there any limitations in granting such aid and if so what are they? These are the questions require an answer in his revision petition. 3. The Civil Procedure Code does not contain any specific provision enabling the court to grant police aid to assist the amin to effect delivery of possession of property in execution of a decree or to assist any officer of court or any party for that matter to enforce any of the orders passed by the court. But it is the function and nay the duty of court to see that orders passed by it are enforced and the responsibility of enforcing the law is on the part of the police. But it is the function and nay the duty of court to see that orders passed by it are enforced and the responsibility of enforcing the law is on the part of the police. If at the time of implementation of the order of court there is likelihood of any breach of peace the police force has to be requisitioned to face the situation in order to prevent the breach of the peace and to see that law and order is restored. If a request is made by the court it is the duty of the police to receive the same and render necessary assistance to the person who seeks enforcement of the orders of court. 4. Though there is no specific provision in the code enabling the court to render police aid the court has inherent power to requisition on the police for necessary help. S.151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 5. Every court while dispensing justice has all such powers necessary to do the right and to undo a wrong. The test to see whether the court has or has not an inherent power to pass an order in any particular case is whether it falls under one or other of the provisions of the statute. If there is such a provision the court cannot exercise any inherent power whereas if there is none the court has inherent power to pass such orders as may be necessary to meet the ends of justice. Circumstances may arise which are not covered by any of the express provisions contained in the statute and where justice has to be done. Under such circumstances the court has power to do the right. The inherent power of the court is in addition to and complimentary to the powers conferred on the court under the Code. That being so the power should be exercised only if the matter does not fall within the ambit of the express provisions of the statute. Under such circumstances the court has power to do the right. The inherent power of the court is in addition to and complimentary to the powers conferred on the court under the Code. That being so the power should be exercised only if the matter does not fall within the ambit of the express provisions of the statute. S.151 does not confer any specific power on the court whereas it only indicates that the court has an inherent power to pass such orders as may be necessary to meet the ends of justice and to prevent an abuse of the process of the court. That is made clear by the heading of the Section "Saving of inherent powers of court". 6. It has to be remembered that the aid of the section cannot be invoked in a case where there is an express provision in the Code applicable to the case. Recourse to this provision cannot be bad by a party who has not availed of the remedy provided under the provisions of the code. As observed by the Rangoon High Court in U. Aung v. Government, AIR 1940 Rangoon 162, ends of justice and abuse of the process of the court must be interpreted with due regard to the other provisions of the Code, the section being really intended to prevent the courts from being rendered impotent by any omission in the Code. The court has therefore inherent power to pass any order to meet the ends of justice in a case not covered by any of the other provisions contained in the Code. 7. The question whether police aid can be given under S.151 CPC. came up for consideration before the Andhra Pradesh High Court in Oudemma v. Narasimhan, AIR 1971 A. P. 53. It was held that if the police authorities are under a legal duty to enforce the law courts can give appropriate directions under S.151 CPC. to render aid to the aggrieved parties for the due and proper implementation of the orders of court. It was further held that the exercise of inherent power under S.151 cannot be said to be devoid of jurisdiction. to render aid to the aggrieved parties for the due and proper implementation of the orders of court. It was further held that the exercise of inherent power under S.151 cannot be said to be devoid of jurisdiction. It was observed that there is no express provision in the Code prohibiting the exercise of such a power and the court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for enforcement of the court's order in a lawful manner. This court in the decision in Pulikkalathu Mohammed v. C. Mohammed Haji - 1986 KLT 134 held: "In a case where manifest injustice would result if immediate action is not resorted to the court should definitely exercise its powers under S.151 CPC. S.151 preserves the power of the court to pass orders exdebito justice. By virtue of the duty of the court to do justice to the parties the court can definitely exercise powers under S.151 CPC." The only limitation is that the inherent powers cannot override the provisions of the Code. It was observed that whenever interests of justice require compelling attention of the court to do justice to the party who is faced with violation of his legal rights the court should definitely prevent such transgressions or violation. The court can fall back on its powers under S.151 CPC. in order to do justice in such circumstances. 8. What are the circumstances in which police aid can be requisitioned is the next aspect that falls for consideration. Any person bound by a decree and refuses to vacate the property is liable to be removed. Similarly the judgment debtor or any person claiming under him who refuses to vacate the property when a certificate of purchase in respect of immovable property issued by the court is put in execution can also be removed. The procedure to be followed in case of obstruction or resistance by any person in obtaining such possession is prescribed in R.97 of O.21 CPC. R.35 provides that where a decree is for delivery of any immovable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate the property. 9. R.35 provides that where a decree is for delivery of any immovable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate the property. 9. R.35 is applicable in a case where the holder of a decree seeks delivery of property. 10. R.95 stipulates that where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequent to the attachment of such property and a certificate in respect thereof has been granted under R.94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. 11. Under R.35 a person who is bound by the decree is liable to be removed and possession has to be given to the decree holder removing such person from possession. Who is the person bound by the decree will depend upon the facts and circumstances of each case. An enquiry has therefore to be conducted though not a detailed enquiry to satisfy the court whether the person in possession is bound by the decree. It cannot be disputed that persons claiming through or under the judgment debtor are always bound by the decree and any such person refusing to vacate the property is liable to be removed in execution of the decree against the E judgment debtor. R.95 enumerates the category of persons who are liable to be removed in execution of a certificate of purchase granted by the Court under R.94. They are: (i) the judgment debtor (ii) any person on his behalf and (iii) any person claiming under a title created by the judgment debtor subsequent to the attachment of such properly. If any of these persons refuses to vacate the same he is liable to be removed in execution of the certificate of purchase. They are: (i) the judgment debtor (ii) any person on his behalf and (iii) any person claiming under a title created by the judgment debtor subsequent to the attachment of such properly. If any of these persons refuses to vacate the same he is liable to be removed in execution of the certificate of purchase. The court has therefore every power to remove any person bound by the decree or any of the persons mentioned in R.95 of O.21 who refuses to vacate. In such cases the court can requisition the aid of the police in order to see that such person is removed from the property for the purpose of giving possession to the decree holder or the purchaser as the case may be. 12. The position may be different in case where the resistance is offered by a stranger who is not bound by the decree or one who does not fail under one or other of the category mentioned in R.95. In such cases the remedy available "to the decree holder is to move an application under R.97 of the Code complaining of such resistance or obstruction. R.97 is applicable to obstruction in the case of delivery sought to be affected in execution of a decree under R.35 as well as in execution of a purchase certificate under R.95. At the first blush it may appear that the decree holder has to move the court every time when there is resistance or obstruction by any person in obtaining possession of the property. Such a person may be either one who is bound by the decree or coming under the category mentioned in R.95 or he may be a stranger who is not bound by the decree and claim rights independent of the judgment debtor. The scheme of the Code appears to be that enquiry regarding the rights of the obstructor or the resistor is contemplated only in cases of resistance or obstruction by strangers to the decree who are not bound by the same. In other words an enquiry is not necessitated in a case where the obstruction or resistance is by a person who is bound by the decree or claims through or under the judgment debtor. 13. In other words an enquiry is not necessitated in a case where the obstruction or resistance is by a person who is bound by the decree or claims through or under the judgment debtor. 13. Is the decree holder bound to file an application R.97 every time a resistance is offered or whether he can request the court to remove such resistance without any enquiry as to the rights of the obstructor? This court had occasion to consider this aspect in the decision in Chandrika alias Chandramathy v. Gangadharan and others - 1983 KLT 953 it was held: "Where a decree holder or an auction purchaser is resisted by a person on behalf of the judgment debtor or claiming under the judgment debtor and if the court is satisfied that the resistance or obstruction has been offered without any substance or claim of the obstructor on the face of it is unacceptable and cannot be said to be done in good faith, the court is bound to remove the obstruction and put the decree holder in possession". A distinction was drawn in the case of resistance by a stranger claiming rights independent of the judgment debtor. It was observed that in either case the decree holder or auction purchaser cannot be compelled to move an application under R.97. It was held that a careful reading of R.97 shows that the provisions therein are only directory and not mandatory. It was further held that the court has to be satisfied by making a prima facie enquiry regarding the circumstances of the case before passing an order for removal of obstruction or resistance. Such enquiry is necessary in order to see whether the obstructor belonged to one or other of the category mentioned in O.21 R.95 CPC. Following this decision it was held in the decision in Raman v. Karthikeyan 1984 KLT 1071 that even in the case of a person who claims to be in possession in his own light, and independently of the judgment debtor, but whose claim is, on the face of it unacceptable and cannot be said to be made in good faith, the court will issue a fresh warrant and will direct the delivery of possession by removal of such a person, who refuses to vacate the property. In such cases fresh warrant can be taken either under R.35 or under R.97 of O.21. In such cases fresh warrant can be taken either under R.35 or under R.97 of O.21. It was observed that the court will so act only if the court is prima facie satisfied that resistance or obstruction has been offered by a person on a ground, which is patently without substance, or whose claim is on the face of it unacceptable and cannot be said to be in good faith. It is open to the court to peruse the materials already on record or to require the decree holder to furnish additional materials for this purpose. On perusal of such materials the court has to come to a conclusion as to whether resistance or obstruction is made in good faith and has to be sustained or whether such resistance has to be removed. Such a course has to be adopted since the provisions in R.97 is only directory and not mandatory. 14. It is optional on the part of the decree holder to avail of the remedy under R.97. Even then if the obstruction or resistance is by a person who is bound by the decree or who comes under one or other of the category mentioned in R.95 then the decree holder or purchaser as the case may be need not exercise his option under R.97 and instead may request the court for removal of such person and the court shall order delivery by putting the decree holder or the auction purchaser in possession by removing the person who refuses to vacate the property. The court has no discretion in the matter in view of the mandatory provision contained in R.35 and 95 of O.21. It is the duty of the court in such circumstance to see that the decree holder or auction purchaser is put in possession without any delay whatsoever so as to enable him to obtain the fruits of the decree or order obtained by him. If that be so the obstruction or resistance caused by any such person is liable to be removed and for that purpose the court has every right to requisition the aid of the police. Before directing the police to render aid the court has to be satisfied that the obstruction was offered by a person whose claim is on the face of it unacceptable. The following observation of Khader, J. in Chandrika's case (supra) is apposite in this connection. Before directing the police to render aid the court has to be satisfied that the obstruction was offered by a person whose claim is on the face of it unacceptable. The following observation of Khader, J. in Chandrika's case (supra) is apposite in this connection. "But before a court can pass an order for removal of obstruction or resistance, it has to be satisfied by making a prima facie enquiry as the circumstances of the case may require that the obstructor belonged to one or other of the categories mentioned in O.21 R.95 CPC." This position has been made clear in Raman's case (supra). After a survey of the various decisions on this aspect Paripoornan, J. held that there is no bar in issuing a fresh warrant and directing delivery of possession by removal of a person whose claim is on the face of it unacceptable and not one made in good faith. It was observed that there is no bar in taking such a step flowing from either R.35 of O.21 or R.97 of O.21. The only restriction is that the court has to be satisfied prima facie that resistance has been offered by a person on a ground, which is patently without substance, or whose claim is on the face of it unacceptable and cannot be said to be in good faith. 15. The question whether the court is competent to issue a warrant of delivery even after a warrant so issued earlier had been returned without effecting delivery on account of obstruction had come up for consideration before this Court in the decision in Mamoo v. Krishan Chettiar, 1978 KLT 901 . Following the decision of the Madhya Pradesh High Court in Bhagvat v. Kasturi, AIR 1974 M P. 26 it was held that the court is competent to issue such a warrant. It was further held that the decree holder is entitled to apply for a warrant for delivery of property decreed in his favour despite obstruction when it was sought to be delivered over on an earlier occasion, and that the court is competent to issue fresh warrant leaving the obstructor free to resist delivery again, if he so chooses, but before issuing another warrant, the Court should on sufficient materials be satisfied of a strong prima facie case that the obstructor is one bound by the decree. Though that observation was made in connection with issue of fresh warrant under R.35 I am of opinion that the position cannot be different in cases falling under R.95 also. But the court would not be justified in issuing another warrant without being satisfied that the obstructor is a person bound by the decree or a person coming under one or other of the category mentioned in R.95. 16. Can an obstructor maintain an application under R.97 in anticipation of his dispossession in execution of a decree is the next aspect that falls for consideration. R.97 enables only the holder of a decree or purchaser of any property to make an application complaining of resistance or obstruction in obtaining possession of the property. When such an application has been filed by the decree holder or purchaser as the case may be the court has to make an adjudication of that dispute and all questions including, the questions relating to right, title or interest in the property arising between the parties to a proceeding on such application shall be determined by the court dealing with that application as provided in R.101. After such adjudication the court has to make an order either allowing the application and directing that the applicant be put in possession of the property or dismiss the application or pass such other order as may deem fit in the circumstances of the case. A reading of R.97 will make it clear that an application for adjudication of the rights of the obstructor will lie only at the instance of the decree holder and not at the instance of an obstructor. Sub-r.(1) reads : "Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction". An adjudication has to be made by the court and pass appropriate orders under R.100 and such an order has to be treated as a decree for all purposes including for the purpose of appeal and second appeal. In case the obstructor is dispossessed his remedy is to make an application under R.99 complaining of such dispossession. An adjudication has to be made by the court and pass appropriate orders under R.100 and such an order has to be treated as a decree for all purposes including for the purpose of appeal and second appeal. In case the obstructor is dispossessed his remedy is to make an application under R.99 complaining of such dispossession. When such an application is made the court shall proceed to adjudicate upon that application in accordance with the provisions contained in R.101. A separate suit at the instance of the obstructor will be maintainable in view of that rule. After making such enquiry as deemed necessary the court has to make an order allowing the application and directing the applicant to be put in possession of the property or dismissing the application or pass such other order as it deem fit. The obstructor has therefore not been conferred with a right to move the court under R.97 whereas his remedy is only to resist execution. A Division Bench of this Court in Prabhakaran v. Kuttian Prakashan and another - 1985 KLT 225 held that if in spite of his resistance he is dispossessed, his remedy is only to apply for restoration of possession as provided in R.99 of O.21. It was further held that a separate suit at his instance after dispossession will not be maintainable in view of R.101. It was observed that this does not however, preclude the obstructor from having recourse to a civil court by way of a separate suit before he is dispossessed in execution of a decree to which is not a party. The remedy of an obstructor is only to resist execution and it is for the decree holder to decide whether he should move under R.97 or to take out a fresh warrant of delivery. In any case the obstructor is not entitled to move the court under R.97 for getting his rights adjudicated. This position has been made clear by a Full Bench of the Madhya Pradesh High Court in Usha Jain v. Manmohan Bajaj, AIR 1980 M. P. 146 where it was held that no enquiry into the title or possession of a third party is contemplated at any rate at his instance either under R.35 and 36 or R.95 and 96 of O.21 CPC. when the decree holder or the auction purchaser applies for obtaining possession. when the decree holder or the auction purchaser applies for obtaining possession. It was further, held that an enquiry at the instance of a third party in possession is contemplated only under R.100 of O.21 after he was dispossessed and not before it. 17. The provision in R.97 is clear that only a decree holder can maintain an application under that rule and that no right has been conferred by that rule on an obstructor to file an application for getting his rights adjudicated. An application under R.97 would not therefore lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree for delivery of property. 18. Is the executing court bound to stay its hand every time a third party claims a right over the property sought to be delivered? According to me the answer is in the negative. The court has to ascertain whether the claim is on the face of it unacceptable. If so the court has to enforce the order for delivery by rendering necessary police aid. Learned counsel for revision petitioner relying on the decision in Gaya Nath Ghose v. Amulya Chandra Sarkar and another, AIR 1957 Calcutta 252 would contend that the obstructor has to be given an opportunity to be heard before the court requisitions the aid of the police. It was held therein that the claimant is vitally affected by an order for police help and is entitled to be heard on an application praying for such help. It was observed that the court may examine any person it thinks fit and hear him and if necessary, the court may direct notice to all persons in actual possession by advertisement or otherwise. Such a procedure need be adopted only if the claimant is vitally affected by an order for police help. In other words he need be heard only if he is not bound by the decree or is a person claiming rights independent of the judgment debtor. In that decision it was held that the decree holder may apply to the court for grant of police help if the decree cannot be effectively executed without police help. A distinction was drawn between an application for police help and an application under R.97 of O.21. In that decision it was held that the decree holder may apply to the court for grant of police help if the decree cannot be effectively executed without police help. A distinction was drawn between an application for police help and an application under R.97 of O.21. It was observed that the court should not hesitate to give police aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid. At the same time the court should proceed with great caution in granting police help. In that case the claimant was a sub tenant. The decree holder did not disclose the entire facts in his petition praying for police help. Under such circumstances the court held that the executing court had acted illegally in passing an order for police help. 19. Reliance was also placed on the decision of the same Court in Mrs. Ajit Kumar Ray v. Jnanendra Nath, AIR 1975 Calcutta 433. The court was considering in prayer for police help in the light of R.208 of the Civil Rules and Orders framed by the Calcutta High Court. That rule says that if any decree holder prays for police help in execution of a decree he shall state in his application the full reasons thereof supported, if required, by an affidavit. The Court may examine the decree holder or such other person for coming to a conclusion as to whether or not there is any necessity for police help. The court has then to record its reasons for allowing police help and request the police authority for extending help at the time of execution of the decree. It was held that that rule can be used only in exceptional cases and not too readily, when the court will be of opinion that unless police help is given there will be danger to the public peace on account of the execution of the decree. It was further held that this application for police help is a discretionary matter to the judicial officer who deals with it. This aspect was reiterated by observing that courts should remember that they should not readily grant police help whenever there would be any application for such relief. The request can be granted only in case of grave situation or in cases where police help is essential for the execution of the decree. This aspect was reiterated by observing that courts should remember that they should not readily grant police help whenever there would be any application for such relief. The request can be granted only in case of grave situation or in cases where police help is essential for the execution of the decree. Though rules similar to R.208 interpreted by the Calcutta High Court in Ajit Kumar Ray's case (supra) are in the Kerala Civil Rules of Practice the court is not powerless to grant police help in appropriate cases. Even in that decision it was held that the prayer for police help may be made by the decree holder either in an application under R.97 or 98 of O.21. The only restriction imposed by the court is that it should be used only in exceptional cases and not too readily. 20. The position that emerges from the discussions in the above paragraphs is this. It is optional on the part of the decree holder to avail of the remedy under R.97 of O.21 since the rule is only directory. In a case where the obstruction is caused by a person who is bound by the decree or by one of the persons enumerated in R.95 the decree holder need not exercise his option under R.97. The obstructor is liable to be removed in execution of the decree or order and for that purpose the court can requisition the aid of the police and should render necessary police help to the amin to effect delivery of possession to the decree holder of the auction purchaser as the case may be. Before an order requisitioning police help is passed by the court it is necessary that the court has to satisfy that the resistance or obstruction is caused by a person bound by the decree or on behalf of such person or one "whose presence in property is accountable only to its possession by judgment debtor or some one ex facie bound by the decree." The court will act only on prima facie satisfaction that the resistance or obstruction was found to be offered by a person whose claim is on the face of it unacceptable. Even in the case of a person who claims t6 be in possession independent of the judgment debtor the obstructor or resistor is liable to be removed if the claim is unacceptable on the face of it and if such claim is not put forward in good faith. In such cases the court can issue a fresh warrant for delivery and to enforce such a warrant it is open to the court to requisition necessary police help to the amin. Such a course has to be adopted to prevent breach of peace and to meet the ends of justice and to prevent the abuse of the process of court. 21. If the court forms an opinion that the obstruction was caused by a person who claims to be in possession in his own right and independent, of the judgment debtor and if such claim to possession is made in good faith the court can refuse to issue a fresh warrant and direct the decree holder to move under R.97 for an adjudication of the rights of the resistor. True, the provision in R.97 is directory. But investigation of the title of the obstructor is contemplated under R.97 after the amendment of CPC. in 1976. The enquiry under R.97 is not a summary enquiry, but a full fledged enquiry wherein all questions including questions relating to right, title or interest in the property arising between the parties to the proceeding namely, the decree holder, the judgment debtor and the obstructor are to be determined by the court in that application and not by a separate suit. If the obstructor is dispossessed he is not without a remedy. He can apply for restoration of possession under R.99 and the executing court has to adjudicate the question of right, title and interest of the obstructor. For all purposes including the purpose of appeal an adjudication of his right under R.100 has to be treated as a decree. A reading of R.99 to 101 makes it clear that the only remedy of such a person is to make an application under R.99 and not by way of a separate suit. For all purposes including the purpose of appeal an adjudication of his right under R.100 has to be treated as a decree. A reading of R.99 to 101 makes it clear that the only remedy of such a person is to make an application under R.99 and not by way of a separate suit. As held by the Division Bench in Prabharan's case (supra) this does not preclude the obstructor from taking recourse to a civil court by way of a separate suit before he is dispossessed in execution of a decree to which he is not a party. The bar of the suit arises only if such a suit is filed after dispossession in view of the provision contained in R.99 to 101 of O.21. 22. The scope of enquiry under R.97 and 99 has been enlarged by the amendment of 1976. Sub-r.(2) has been substituted in R.97 and 99 and R.100 to 104 were inserted by the amendment. By virtue of these provisions the court has to make enquiry and determine all questions of right, title and interest in the property. 23. Before invoking the aid of R.97 the holder of a decree for possession of property has to apply under R.35 and an auction purchaser under R.95 of O.21. In the case of obstruction both can apply under R.97 complaining of resistance. The decree holder or the purchaser has therefore to apply first under R.35 or R.95 respectively and the aid of R.96 can be invoked only if there is resistance. In other words a complaint of anticipatory resistance or obstruction cannot be entertained by the court. Similarly an objection by the judgment debtor in anticipation of delivery of possession cannot also be entertained. 24. The direction to the police to render police help is a discretionary matter to be exercised by the court judicially. If there is likelihood of breach of the peace or apprehension of danger to the person of the decree holder or the amin or any other officer of the court the court should readily grant police help. But before granting such aid the court has to be satisfied that there is likelihood of unlawful obstruction. If there is likelihood of breach of the peace or apprehension of danger to the person of the decree holder or the amin or any other officer of the court the court should readily grant police help. But before granting such aid the court has to be satisfied that there is likelihood of unlawful obstruction. In case the court feels that there is a bonafide claim by the person in possession who is not bound by the decree and as such entitled to resist delivery it is not proper on the part of the court to direct the amin to deliver the property either to the decree holder or the auction purchaser with the assistance of the police. As observed by the Calcutta High Court in G. N. Ghose's case (supra) relief by way of restoration is poor consolation for a person who is unlawfully dispossessed. The court has therefore a bounden duty before requisitioning police help to see whether the obstruction was caused by a person who has on bona fide claim over the property and whether he is bound by the decree or not. The request should be granted only in such cases and not whenever an application for police help is filed by the decree holder or the auction purchaser. 25. In the present case first respondent obtained an order for eviction in a rent control petition filed in 1983. The order passed therein was appealed against which proved to be unsuccessful. The revision filed against that order also ended against the tenants. Even against the order passed by the executing court for delivery of property a revision has been filed before this court by one of the tenants and a revision before the District Court by the other. Both the revisions were dismissed. It was thereafter that the suit O. S.542/90 was filed by revision petitioner. His request for a temporary injunction seeking to restrain the holder from executing the decree was refused by the first court against which an appeal is pending. The appellate court has not granted his request for interim injunction. It was in these circumstances that the decree holder requested for police help to get delivery of possession anticipating breach of the peace consequent to the obstruction likely to be caused by revision petitioner. The appellate court has not granted his request for interim injunction. It was in these circumstances that the decree holder requested for police help to get delivery of possession anticipating breach of the peace consequent to the obstruction likely to be caused by revision petitioner. In case revision petitioner is a person not bound by the decree he has got the remedy by way of resistance to delivery of possession. He has got also an alternate remedy by filing a suit and obtaining an injunction. Revision petitioner has chosen the second remedy. It is suggested in Usha Jain's case (supra) that in such a suit if the conditions for grant of a temporary injunction having the result of staying execution of a lawful decree are satisfied by the plaintiff making out a strong prima facie case showing his alleged right and title independent of the judgment debtor, then it is open to the civil court in that suit to grant a temporary injunction to protect his possession during the pendency of the suit. It was observed dial the satisfaction needed for granting a temporary injunction in plaintiff's favour in such a suit and the requirement of making out a strong prima facie case would ensure that the result of staying execution of a lawful decree during its subsistence is achieved only by a genuine claimant who alone is entitled to the protection of his possession and such a result does not ensue in the claim made by a spurious claimant who does not deserve that benefit. 26. Revision petitioner having availed of the alternate remedy and obtained an adverse order has no right to request the court to be heard in the application filed by the decree holder for rendering police help. The observations of Rajasthan High Court in Ganga Ram v. Devi Singh, AIR 1984 Rajasthan 98 are apposite in this connection. "Experience shows that resistance and obstructions are placed in execution of the decree and provision of O.21 R.98, CPC has been tried to be invoked, to stultify the decree or forestall the execution for years and the decree holder even can be prevented to realise the fruits of the decree, thereby shaking faith its the credibility of legal system. "Experience shows that resistance and obstructions are placed in execution of the decree and provision of O.21 R.98, CPC has been tried to be invoked, to stultify the decree or forestall the execution for years and the decree holder even can be prevented to realise the fruits of the decree, thereby shaking faith its the credibility of legal system. If the strangers are allowed to have any, say, then the decree holders instead of seeking redress through courts of law, would be compelled to adopt extra legal methods to get possession over the property." 27. The request for police help was made anticipating breach of the peace consequent to obstruction likely to be caused by revision petitioner. That the apprehension is well founded is evidenced from the conduct of revision petitioner in filing a suit for injunction and seeking a relief in the f nature of temporary injunction. Having failed therein it can be expected that he is likely to obstruct delivery which may result in breach of the peace. The executing court was therefore right in granting police help to the amin. The executing court has therefore exercised its jurisdiction in a lawful manner and no illegality or material irregularity has been committed by the court warranting interference in revision. In the result the revision is dismissed, but without costs.