Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 430 (CAL)

Anjali Das v. Samar Roy

2010-04-22

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT: 1. THE decree-holders/opposite parties filed an application under Rule 208 of the Civil Rules and Orders of the High Court, Calcutta for grant of police help in aid of execution of an eviction decree passed against the judgment-debtors/petitioners herein. 2. THE petitioners who are some of the judgment-debtors appeared in the said proceeding and filed an application by inviting the learned Executing Court to convert the decree-holders, said application under Rule 208 of the Civil Rules and Orders to an application under Order 21 Rule 97 of the Code of Civil Procedure, as according to the petitioners, Rule 208 of the Civil Rules and Orders cannot be invoked when allegations regarding offering of resistance to the execution of the decree is made in the application against any specified and particular obstructer. THE petitioners also prayed for issuance of notice relating to the said proceeding under Rule 208 of the Civil Rules and Orders to all the judgment-debtors, as according to the petitioners, such proceeding cannot be concluded without service of notice of the said proceeding upon all the judgment- debtors. The learned Executing Court rejected the petitioners' said application by the impugned order dated 13th December, 2007. 3. THE petitioners are aggrieved by the said order. Hence the petitioners have come before this Court with this application under Article 227 of the Constitution of India for challenging the said order. 4. HEARD Mr. Mukherjee, learned Advocate appearing on behalf of the petitioners and Mr. Mallick, learned Advocate appearing on behalf of the opposite parties. Let me now consider as to how far the learned Executing Court was justified in passing the impugned order in the facts of the instant case. 5. THERE are various provisions under which police help can be granted in aid of execution depending on various circumstances. Police help can be granted under Order 21 Rule 97 of the Code of Civil Procedure. Such police help can also be granted under Rule 208 of the Civil Rules and Orders of the High Court, Calcutta. The scheme for grant of police help under Order 21 Rule 97 of the Code of Civil Procedure is enumerated in Order 21 Rule 97 of the Code of Civil Procedure. Such police help can also be granted under Rule 208 of the Civil Rules and Orders of the High Court, Calcutta. The scheme for grant of police help under Order 21 Rule 97 of the Code of Civil Procedure is enumerated in Order 21 Rule 97 of the Code of Civil Procedure. The said provision contemplates that where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining such resistance or obstruction. The said provision also makes it clear that where any application is made under sub-section (1), the Court shall proceed to adjudicate upon the said application in accordance with the provision contained in the Code of Civil Procedure. The question which can be considered in such a proceeding has been enumerated in Order 21 Rule 101 of the Code of Civil Procedure. How an order is to be passed after such adjudication is made, is provided in Order 21 Rule 98 of the Code of Civil Procedure. The consequence for passing of such order under Order 21 Rule 98 is provided under Order 21 Rule 103 of the Code of Civil Procedure which provides that the order which will be passed under Order 21 Rule 98 will be a deemed decree and be subject to the same condition as to an appeal. 6. RULE 208 of the Civil RULEs and Orders of the High Court, Calcutta also provides for grant of police help on an application filed by the decree- holder, supported by affidavit, if necessary. Once such an application is filed, the Court may further by examining the decree-holder or such other person as it thinks fit touching the necessity of police help and if on consideration of all the facts and circumstances, the Presiding Judge is of clear opinion that there are reasonable ground to suppose that execution will not be effected without causing serious danger to public peace, he may, after recording his reasons for so doing, make a request to the Superintendent of Police of the district for such police aid as the latter may be able to give in the execution of the writ. It is provided therein that since police help is an extreme step, Court should not recommend grant of such police help unless the Court is fully convinced of the existence of grave emergency. If the scheme for grant of police help under Order 21 of the Code and the scheme of grant of police help under Rule 208 of the Civil Rules and Orders of the High Court, Calcutta are considered carefully, then it will be apparent that the circumstances under which such police help can be granted under those provisions, are different from each other. In case of removal of obstruction by police help under Order 21 Rule 97 of the Code of Civil Procedure, the Court is not required to give any finding as to whether there exists a grave emergency or not and further as to whether there is any apprehension of breach of public peace and tranquility in the process of execution of the writ or not. But in case of grant of police help under Rule 208 of the Civil Rules and Orders, the Court cannot grant police help without recording his satisfaction with regard to the existence of reasonable apprehension regarding breach of public peace and tranquility in the locality in the process of such execution. 7. THUS, this Court holds that the aforesaid two provisions operated in two different fields in connection with the execution proceeding. Here in this case the decree-holders have applied for police help not only by alleging that the petitioners obstructed the execution of the said decree but also by alleging that there is grave apprehension of breach of public peace and tranquility and as such, execution of the writ of possession cannot be effected without grant of police help under Rule 208 of the Civil Rules and Orders. 8. IN view of the nature of the averments made by the decree- holders in the said application, this Court is of the view that such an application for grant of police help is maintainable under Rule 208 of the Civil Rules and Orders of the High Court, Calcutta. As such, this Court does not feel any necessity for convert the said application under Rule 208 of the Civil Rules and Orders into an application under Order 21 Rule 97 of the Code of Civil Procedure. As such, this Court does not feel any necessity for convert the said application under Rule 208 of the Civil Rules and Orders into an application under Order 21 Rule 97 of the Code of Civil Procedure. This Court fully agrees with the ultimately conclusion arrived at by the learned Executing Court in this regard. Further, relying upon the decision of this Hon'ble Court in the case of Dwarikanath Chowdhury and Ors. v. Sadananda Chowdhury and Ors., reported in 2003 (2) CHN 340 , this Court holds that the obstructer's right of hearing in connection with the said proceeding for grant of police help under Rule 208 of the Civil Rules and Orders cannot be denied. As such, leave is granted to the petitioners who obstructed the execution of the decree to file objection against the decree-holders' application for grant of police help under Rule 208 of the Civil Rules and Orders, within four weeks from date. 9. NEEDLESS to mention here that no notice need be served upon the other judgment-debtors who did not obstruct the execution of the said decree. The learned Executing Court is, thus, directed to expedite the hearing of the decree-holders' said application for grant of police help as far as possible but preferably within a period of 12 weeks from the date of submission of the objection by the petitioners against the decree-holders' said application for grant of police help. The time limit which is fixed above either for submission of objection by the petitioners against the decree- holders' application for grant of police help or for disposal of the said application of the decree-holders for grant of police help as mentioned above, should be regarded as peremptorily fixed by this Court. 10. IT is, however, made clear that while disposing of this revisional application, this Court has not considered the merit of the decree-holders' said application under Rule 208 of the Civil Rules and Orders. The revisional application, thus, stands disposed of.