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2011 DIGILAW 606 (CAL)

Anupama Das v. Nirmal Kumar Tamli

2011-05-02

RAGHUNATH BHATTACHARYA

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Judgment :- Raghunath Bhattacharya, J. The instant appeal has been preferred against the judgment and order passed in Misc. Appeal No. 62 of 1998 dated 23.07.2004 by Sri K.M. Guchayait, Learned Additional District and Sessions Judge, First Court (1), Kalyani, Nadia affirming the order dated 24.07.1998 passed by Sri D. Halder, Learned Civil Judge (Junior Division), Kalyani, Nadia in Misc. Case No. 78 of 1995 arising out of Title Execution Case No. 11of 1995 refusing to grant police protection. The thumbnails sketch of the plaintiff’s case is as follows : - 1. The contention of the Misc. Case petition filed under Order 22A rule 97 C.P.C. read with 208 of C.R.O., is that plaintiff/decree holder Smt. Anupama Das filed a suit for eviction against Nirmal Kumar Tamli. That suit being No. T.S. 82 of 1986 has been decreed in favour of the plaintiff. As the defendant/judgment debtor refused to deliver the peaceful possession to plaintiff so the plaintiff filed an application under Section 21 Rule 35 to execute the decree. Said writ of possession was forcefully and illegally resisted by the O.P.s, his men and agent on 30.07.1995 followed by the petitioners identification of the suit property. Thus the decree of eviction could not be executed and report was submitted by the process server to the effect that writ can only be executed by the Nazir with the help of police at the plaintiff’s cost. So plaintiff filed an application under Order 21 Rule 97 same was registered as Misc. Case. Judgment debtor Nirmal Kumar Tamli did not contest the said Misc. Case. Added O.P.s who has obstructed the writ of possession contested the Misc. Case denying all the material allegation made in the said application under order 21 Rule 97. After hearing both side Learned Trial Court rejected plaintiff’s application under Order 21 Rule 97. 2. Being aggrieved by and dissatisfied with the said order plaintiff/decree holder preferred an appeal before the Learned District Judge, Nadia which was transferred to Learned A.D.J., First Court, Kalyani and after hearing both side Learned First Appellate Court has confirmed the order of the Learned Trial Judge. 3. Being aggrieved by and dissatisfied with the said judgment of the Learned First Appellate court plaintiff has preferred Second Appeal before Hon’ble High Court at Calcutta. 3. Being aggrieved by and dissatisfied with the said judgment of the Learned First Appellate court plaintiff has preferred Second Appeal before Hon’ble High Court at Calcutta. According to Learned Appellate Court the added O.P. are found to be in possession prior to filing of the Title Suit No. 82 of 1988. As per the report of the process server, decree holder / plaintiff had the knowledge about such possession of the added O.P. over the suit property at the time of filing of the suit. It was the observation of the Learned Appellate Court that the added O.P. were not implied in that suit. It was the specific observation of the Learned First Appellate Court that as the added O.P.s are not made a party in T.S. No. 82 of 1988. In such circumstances Learned Trial Court was perfectly justified in holding that the decree cannot be executable against this added O.P.s as they are not implied as the parties in the suit though the same is within the knowledge of the plaintiff. 4. Second Appeal was admitted and it was decided the instant appeal be heard on following substantial question of law. A. Whether learned Court below committed substantial error of law in dismissing the application under Order 21 Rule 97 of C.P.C. without deciding the question whether the wife of the judgment debtor had right, title and interest to the property to induct the added respondent No. 2 and 3. B. Whether the Learned Court below committed substantial error of law in not deciding real question whether the added respondent No. 2 and 3 had right o resist the decree for eviction passed against the husband of their inductor. 5. Admittedly though added Opposite Party contested before the Trial Court as well as the First Appellate Court yet inspite of the service of the notice none appeared on behalf of the added respondent. So the matter was heard ex-parte though all the points raised in the Trial Court as well as First Appellate Court are taken into consideration. Mr. Bhattacharjee, Learned Counsel appearing for the plaintiff/decree holder assailed the judgment of the Trial Court as well as the First Appellate Court on several points. So the matter was heard ex-parte though all the points raised in the Trial Court as well as First Appellate Court are taken into consideration. Mr. Bhattacharjee, Learned Counsel appearing for the plaintiff/decree holder assailed the judgment of the Trial Court as well as the First Appellate Court on several points. According to him when the process server was prevented by the judgment debtor to hand over the possession of the suit property the learned Court below erred in law in not allowing the application for police protection. It was the submissions of the Learned Counsel appearing for the plaintiff/decree holder that the Learned Court below ought to have allowed the application under Order 21 Rule 97 for executing the decree. 6. At the very outset of the argument Learned lawyer for the appellant Mr. Bhattarcharjee referred to a decision reported in AIR 1998 SC 1827 it was decided : - “ The expression ‘any person’ under Sub Clause (1) of Rule 97 is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words ‘any person’, it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other person claiming right on their own including a stranger, Under the law as it stood prior to 1976 amendment as well as after the amendment the fright of a tenant or any person claiming fight on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the Executing Court itself. Rule 100 of the old law and rule 99 of the new law covers cases where persons other than judgment debtor is dispossessed of immovable property either decree holder, of course, such cases are also covered to be decided by the Executing Court. But this will not defeat the right of such person to get his objection decided under Rule 97 which is stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication is to be under Rule 97 and in case dispossessed adjudication is to be under Rule 100 (old law) and Rule 99 under the new law. In other words, when such person is in possession the adjudication is to be under Rule 97 and in case dispossessed adjudication is to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he sought to be dispossessed by the decree holder. 7. In the instant case son of the petitioner Smt. Anupama Das deposed as P.W. and admits in cross examination that there are four pucca wall tin roofed shop room on the suit property wherein the added O.P.s run their business and have been possessing the same for 12/13 years i.e. since 1985-86. Benoy Munshi the process Server of this Court also contended that in the writ of possession description of shop rooms were not mentioned and he was not directed to execute the writ after eviction of shop keepers after demolishing the same. Admittedly from the ocular version of P.W. 1 and P.W. 2 it appears that in the writ of possession there is no proper description and as a result process server was not in position to execute the writ. Moreover, according to him he was obstructed by some persons. From the careful scrutiny of the judgment of the lower court First Appellate Court it was impossible to come to a definite conclusion who are obstructer. 8. Moreover, according to him he was obstructed by some persons. From the careful scrutiny of the judgment of the lower court First Appellate Court it was impossible to come to a definite conclusion who are obstructer. 8. As per the Order 21 Rule 97 when the third party, in this case added O.P.s, not bound by the decree approaches the court to protect his independent right, title and interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the court as caveat to the decree holder or purchaser or a person claiming through him and the court is to treat it as complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under rule 1 of Order 4. 9. The provision of Rule 101 are mandatory, detail enquiry under the rule is necessary. All questions arising on the application for removal of obstruction have to be decided by the executing cost itself. The procedure as far as applicable to the trial of the suit as far as practicable will have to be followed in an enquiry under Rule 101. Under Rule 101 the court has jurisdiction to resist all question including question of title before allowing the application but this does not mean that the entire procedure de novo of a suit shall have to be followed. 10. I find that process server Sri Munshi went to the spot he was obstructed by some persons and came back to the court and returned the writ of delivery of possession to the department. Thereafter decree holder filed an application for police help The same was rejected on the plea that some persons are occupying the shop room prior to the institution of the suit. But from the careful scrutiny of the judgment of the Learned Trial Court as well as Learned First Appellate Court this court has failed to come to a definite conclusion how they are inducted in the suit premises. But from the careful scrutiny of the judgment of the Learned Trial Court as well as Learned First Appellate Court this court has failed to come to a definite conclusion how they are inducted in the suit premises. It was in the evidence that wife of the tenant Nirmal Kumar Tamli inducted the added O.P.s into the suit premises. Admittedly Nirmal Kumar Tamli was a tenant and I failed to understand how the wife of Mr. Tamli has accrued the right, title and interest over the suit property. So, here induction of the added O.P.s in the tenanted portion is totally illegal. It was observed by the Trial Court that the person who obstructed the process server were inducted in their suit property as a tenant by the wife of the decree holder. Save and except these averments there is nothing on record to come to a definite conclusions how wife of the judgment debtor acquired right to induct added O.P.s as a tenant and what is the terms and conditions of the tenancy as I pointed out earlier. The wife of Nirmal Tamli Smt. Sipra Tamli has no right, title and interest over the suit property. So question of induction is immaterial. 11. In view of aforesaid discussion I think that the entire matter should be adjudicated afresh. The Learned court below has in my opinion miserably failed to come to a definite conclusion in respect of the question whether wife of the judgment debtor has right, title and interest to the property to induct the added O.P. as tenant. It was also not decided whether the added respondent had right to resist the decree for eviction passed against the husband of their inductor. 12. In view of aforesaid discussion I am of the opinion that there is an inherent defect in the judgment and decree passed not only by the Trial court but also by the First Appellate Court. The application under Order 21 rule 97 is rejected whimsically without considering the entire aspect of the suit. Thus, in my opinion the judgment liable to be set aside. 13. Judgment and decree passed by the Learned trial Court as well as that of the First Appellate Court are hereby set aside. 14. The application under Order 21 rule 97 is rejected whimsically without considering the entire aspect of the suit. Thus, in my opinion the judgment liable to be set aside. 13. Judgment and decree passed by the Learned trial Court as well as that of the First Appellate Court are hereby set aside. 14. The Learned Trial Court is hereby directed to hear the plaintiff’s application for police help afresh and passed a reasoned order after giving opportunity to the both side of being heard. It is further directed that the Misc. Case being No. 78 of 1995 should be disposed afresh within six months from the date of receipt of the order of this Court. 15. L.C.R. along with a copy of the judgment be returned to the court below at once. There is no order as to costs.