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2012 DIGILAW 1043 (CAL)

Radha Rani Basak v. Niva Alias Sankari Bose

2012-12-17

SOUMEN SEN

body2012
JUDGMENT Soumen Sen, J. 1. The order dismissing the application filed by the decree-holder under section 151 of the Code of Civil Procedure for direction upon the Deputy Commissioner of Police (North), Calcutta to provide police assistance to the Bailiff in restoring possession of the suit room after issuing a writ for recovery of possession is the subject-matter of challenge in this revisional application. In order to decide the legality and propriety of the impugned order, some of the relevant facts are required to be taken into consideration. The petitioner/plaintiff decree-holder instituted a suit for eviction of one Dukhiram Bose in the City Civil Court at Calcutta being Ejectment Suit No. 591 of 1984. The defendant appeared and contested the said suit. Upon contest a decree was passed in favour of the plaintiff on 18th September, 1995. Dukhiram being aggrieved by the said decree preferred an appeal and the Appellate Court by an order dated 23rd November, 2001 affirmed the decree of the Trial Court. In the meantime and during the pendency of the appeal, the plaintiff filed an application for execution of the decree being EjectmeExecution Case No. 299 of 2000. In the execution proceeding, the learned Executing Court by an order dated 14th May, 2006 directed the Bailiff to execute the decree by taking over possession and giving delivery of possession to the decree-holder of the immovable property forming the subject-matter of the suit. The Bailiff, however, could not comply with the said order in view of the resistance being put by the original defendant/judgment-debtor. 2. In view of the aforesaid, the decree-holder filed an application under Order 21 Rule 97 of the Code of Civil Procedure read with Rule 208 of the Civil Rules and Orders for police help to execute the said decree. The said application was registered as Misc. Case No. 177 of 2008. The Executing Court by an order dated 4th May, 2009 allowed the said application for police help and fixed 7th July, 2009 for delivery of possession of the decreetal property by the Bailiff with police help. 3. In the meantime, the original defendant Dukhiram died on 6th June, 2009. Case No. 177 of 2008. The Executing Court by an order dated 4th May, 2009 allowed the said application for police help and fixed 7th July, 2009 for delivery of possession of the decreetal property by the Bailiff with police help. 3. In the meantime, the original defendant Dukhiram died on 6th June, 2009. Consequent thereupon, the petitioner filed an application under section 50 of the Code of Civil Procedure read with section 151 of the Code for bringing on record the legal representatives of the deceased judgment-debtor in the execution proceeding, namely, Smt. Niva alias Sankari Bose (wife), Sri Joydeb alias Gopal Bose (son) and Smt. Jhumpa Das (married widow daughter). 4. The learned Judge allowed the said application. 5. Thereafter, the said legal representatives preferred a Misc. appeal being Misc. Appeal No. 29 of 2009 against the order passed by the learned Executing Court on 4th May, 2009 allowing the application for police help. The said appeal was, however, dismissed on 23rd November, 2009. While dismissing the said appeal, the Appellate Court made the following observations:-- It is alleged in the name of the instant appeal that after passing the impugned order dated 4.5.09, the original judgment-debtor, namely, Dukhiram Bose, died on 6.6.09 and accordingly the present appellants have preferred the instant appeal and as such the said order dated 4.5.09 is not binding upon the present appellants. There is no dispute that the impugned order was passed before the death of the Judgment-debtor/O.P of the said Misc. case No. 177/08 and more than one month after passing the said impugned order dated 4.5.09, the present appellants have preferred the instant Misc. appeal. So, admittedly the appellants are the legal heirs and representatives of the deceased O.P. of the said Misc. case and as such the order dated 4.5.09 is very much binding upon the appellants of this case. Considering all these facts and circumstances, I find it difficulty to appreciate the grievances as ventilated on behalf of the present appellants and in my view, the ld. Trial Court is perfectly justified in allowing the appellants' application filed under Order 21 Rule 97 CPC read with Rule 208 of Civil Rules and Orders. 6. Thereafter, the petitioner filed an application in the execution proceeding praying for an order to deliver possession by breaking open the padlock. The judgment-debtor appeared and contested the said proceeding. Trial Court is perfectly justified in allowing the appellants' application filed under Order 21 Rule 97 CPC read with Rule 208 of Civil Rules and Orders. 6. Thereafter, the petitioner filed an application in the execution proceeding praying for an order to deliver possession by breaking open the padlock. The judgment-debtor appeared and contested the said proceeding. Considering the report of the Bailiff, the said prayer was allowed and the matter was fixed on 7th July, 2009 for delivery of possession with the police help. Subsequently, by an order dated 1st March, 2010 the time was extended till 1st April, 2010 for delivery of possession by the Bailiff with the help of police and 6th April, 2010 was fixed for final report to be filed by the Bailiff. On 1st April, 2010, the Bailiff filed the report from which it appears that the judgment-debtors were not present at the time of execution. The Bailiff during execution found the room under lock and key. Thereafter he broke open the said padlock in presence of the representatives of the decree-holder and the police authorities. After the said padlock was removed, Mr. Joydeb alias Gopal Bose appeared and after the Bailiff explained to him the purpose of the said visit, the said Gopal Bose willingly removed all his articles and vacated the said room. Thereafter, the possession of the said room was handed over to the son of the decree-holder in presence of the police authorities. The report filed by the Bailiff was, accordingly, accepted on 6th April, 2010. Subsequent to the execution of the said decree, the plaintiff decree holder contended that they were illegally dispossessed from the suit premises at around 1.00 A.M. on the very same night by the judgment-debtor along with some antisocial elements. On such facts, the decree-holder filed an application under section 151 of the Code of Civil Procedure for restoration of possession of the suit room with the help of police and by breaking open the padlock or padlocks if any. 7. The learned Executing Court dismissed the said application on the ground that after recording satisfaction of the decree there is no existence of any execution proceeding nor the suit in which the said decree was passed and, accordingly, the application filed under section 151 of the Code of Civil Procedure for restoration of possession is not maintainable. 8. 7. The learned Executing Court dismissed the said application on the ground that after recording satisfaction of the decree there is no existence of any execution proceeding nor the suit in which the said decree was passed and, accordingly, the application filed under section 151 of the Code of Civil Procedure for restoration of possession is not maintainable. 8. The said order of the Executing Court is under challenge. 9. The learned Advocate for the petitioner submits that such dispossession was made by the legal representatives of the original judgment-debtor in order to circumvent the order passed by the Court. It is argued that all contentious issues for resisting the said decree have since merged with the said decree and, accordingly, the only remedy available to the petitioner, in such a situation, would be to seek a direction for restoration of possession with the police help and not by filing a separate suit. The filing of the suit, in such a situation, for restoration of possession, would not only result in serious miscarriage of justice but also would be contrary to the spirit of section 47 and Order 21 Rule 97 of the Code of Civil Procedure read with Rule 208 of Civil Rules and Orders. Moreover, such an interpretation of the aforesaid provision of law and would encourage unscrupulous litigants to take law in their own hands. It would mean that every time a decree for possession is executed by delivery of possession and if the decree-holder is dispossessed soon thereafter then the decree-holder would be required to file a separate suit for restoration of possession. This interpretation would not only lead to absurdity and result in serious miscarriage of justice but would also be contrary to the principles of equity, justice and good conscience. It is submitted that principles akin to restitution should be applicable and it is a duty of the Court to ensure that the order of the Court is not being rendered otiose by unscrupulous litigants. 10. The Court must be vigilant to ensure that such orders are not rendered nugatory by taking recourse to unlawful means and adopting devious methods. 11. The learned Counsel for the petitioner relied upon the decision reported in 1998(1) CLJ 348 (Hiralal Sha vs. Debprosad Dey & Ors.). 12. 10. The Court must be vigilant to ensure that such orders are not rendered nugatory by taking recourse to unlawful means and adopting devious methods. 11. The learned Counsel for the petitioner relied upon the decision reported in 1998(1) CLJ 348 (Hiralal Sha vs. Debprosad Dey & Ors.). 12. The learned Counsel for the opposite parties in resisting the said application submitted that the legal heirs and representatives of the deceased instituted a suit for declaration and permanent injunction in City Civil Court, Calcutta being Title Suit No. 2752 of 2010. A copy of the said plaint was filed by way of a supplementary affidavit affirmed on 12th September, 2012 and accordingly the said application for police help is not maintainable. It was argued that the petitioner by filing the said application cannot seek eviction of the opposite parties from the suit premises. The rights of the parties are required to be adjudicated and decided in the subsequent suit filed by the opposite parties. 13. The suit was instituted by Sri Joy Bose and Smt. Jhumpa Das, the son and the daughter of the original defendant. The suit was instituted in April, 2010. In the suit the following averments have been made:-- 3. That the plaintiffs' father died intestate on 06 06.2009 leaving behind the plaintiffs as his legal heirs, successors in interest and representative of the suit room who was living at the time of his death. 4. That the defendant in the year 1994 filed an Ejectment Suit against the plaintiffs' father being Ejectment Suit No. 591 of 1984. Subsequently, the plaintiffs' father contested the matter on the ground stated there. The plaintiffs' father was the tenant in respect of the suit room since prior to purchase the premises by the defendant in the year 1981. The defendant filed the said Ejectment Suit on the false and frivolous allegations. In spite of that, the Ld. Court was pleased to pass an order against the plaintiffs' father. In due course of time the defendant obtained a decree against the plaintiffs' father. During the pendency of the appeal, the father of the plaintiffs died. 5. The defendant filed the said Ejectment Suit on the false and frivolous allegations. In spite of that, the Ld. Court was pleased to pass an order against the plaintiffs' father. In due course of time the defendant obtained a decree against the plaintiffs' father. During the pendency of the appeal, the father of the plaintiffs died. 5. That as usual, the defendant filed the Ejectment Execution case against the plaintiffs' father since deceased at that time, being Execution Case No. 299 of 2000 in order to put the decree into execution wherein the defendant has not made the parties to the plaintiffs who have all about the right, title and interest in respect of the suit room who were also lastly residing with the deceased at the time of death. 6. That the plaintiff No. 2 states that after the death of her husband, she started to reside with her children there after who has also all along the right, title and interest in respect of the suit room. That in spite of said circumstances, the plaintiffs continued to pay the monthly rent month after month before the Ld. Rent Controller. The plaintiffs state that duly executing the decree in process and legally, the defendant allowed the plaintiffs to stay in the suit room not with the mother of the plaintiffs but since staying the suit room by the plaintiffs, the men and agents and other relatives of the defendant started to harass the plaintiffs in various ways and means by which the plaintiffs themselves vacate the suit room. In spite of repeated request by the plaintiffs, the men and agent of the defendant repeatedly started disturbing peacefully to stay in the suit room. 7. That the plaintiffs state that the plaintiffs are the bona fide legal heirs and successors of the suit room who have absolute right to stay in the suit room and above all, the defendant herself allowed the plaintiffs to stay in the suit room, the men and agent and other relatives of the plaintiffs have no right to disturb the plaintiffs in any manner whatsoever. The men and agents have no right to disturb the plaintiffs from the peaceful possession of the suit room and oust he plaintiffs without due process of law. 14. The said suit was instituted in April, 2010. The men and agents have no right to disturb the plaintiffs from the peaceful possession of the suit room and oust he plaintiffs without due process of law. 14. The said suit was instituted in April, 2010. The Bailiff report dated 1st April, 2010 clearly records that Joydeb alias Gopal Bose after became aware of the contents of the said writ vacated the stud room, removed all his articles and handed over peaceful possession of the suit room to the decree-holder in presence of the police authorities. The said decree is binding on the opposite parties. In fact, the appeal preferred against the said execution proceeding was dismissed by the Appellate Court. Alt cause of actions the said defendants might have against the decree-holder had merged in the decree. The decree is not under challenge. The Appellate Court held that the order dated 4th May, 2009 is binding upon the legal heirs and representatives of the deceased. 15. In Hiralal Sha (supra) the Hon'ble Division Bench in Paragraph 11 held that once an adjudication is made under Order 21 Rule 97 CPC and in terms of Rule 98 the Court passed an order for putting the decree-holder into possession, there is hardly any scope for argument that even after such adjudication the decree-holder is required to file a fresh suit for recovery of possession and that in such suit the present finding will be a res judicata. 16. The relevant observations of the Division Bench are reproduced hereinbelow:-- 10. The Second point raised by Mr. Roychowdhury, in our opinion, has got no force for the simple reason that in an application under Order 21 Rule 97 the third party resister can resist the decree on the ground that he has acquired an independent title over the suit property and that he is not claiming through judgment-debtor or, in other words, he is not bound by the decree. Therefore, the second plea that the second execution case is not maintainable, is not available to him. 11. As regards the third point raised by Mr. Roychowdhury, we are at a loss to appreciate the submission made by him. Therefore, the second plea that the second execution case is not maintainable, is not available to him. 11. As regards the third point raised by Mr. Roychowdhury, we are at a loss to appreciate the submission made by him. Once an adjudication is made by Order 21 Rule 97 CPC and in terms of Rule 98 Court passes an order for putting the decree-holder into possession, there is hardly any scope for argument that even after such adjudication the decree-holder is required to file a fresh suit for recovery of possession and that in such a suit the present finding will be a res judicata. 22. In terms of 1976 Amending Act, all questions including the question as to the right, title or interest in the property arising between the parties to the proceeding under Rule 97 or Rule 99 of Order 21 of CPC must be determined by the executing Court and not by a separate suit. 23. The scope of a proceeding under Order 21 Rule 97 of the Code of Civil Procedure has, therefore, been expanded to the extent that all questions arising between the decree-holder and the third party in collusion with the judgment-debtor or otherwise including the question as to the title of such parties in the property has to be adjudicated upon which could be raised earlier only in terms of Rule 103 of Order 21 of the Code of Civil Procedure as it then existed. The procedure prescribed in a complete Code in itself. 24. In that view of the matter once an order is passed under Order 21 Rule 97 of the Code of Civil Procedure, the same would be final and binding on the obstructor and there cannot be any reason as to why despite such an order in terms whereof the decree-holder is to be put in possession, he has to file a separate suit therefor. Further in terms of the said rule the Court is entitled to pass any other order as to it may appear fit and proper. 17. Mr. Further in terms of the said rule the Court is entitled to pass any other order as to it may appear fit and proper. 17. Mr. Jahar Chakraborty, the learned Advocate for the petitioner would argue that the Executing Court in considering the application under section 151 of the Code of Civil Procedure should import the principle enshrined in section 141 of the Code of Civil Procedure since filing of a suit or a proceeding under section 6 of the Specific Relief Act would duly and unduly prolong the recovery of the property in question. It is submitted that once a decree has been passed and the rights and liabilities of the parties have crystallized, the Executing Court should have in exercising of its power under section 151 of the Code of Civil Procedure direct restoration of possession. 18. The learned Advocate would urge that the rule of law is to ensure that justice is done to the parties in the proceeding and a legal proceeding should not be used as a tool of oppression. One should not be allowed to misuse and abuse the process of law in order to perpetrate wrong so as to make its existence perilous and irrelevant. Law is not a lame duck. Although, in a different context the Court of Appeal in Jennison vs. Baker reported in 1972(2) QB 52 : 1972(1) All ER 997 (CA) observed:-- The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. 19. If the law is allowed to go to slumber and make to sleep, the society would collapse. It is the duty of the Court to uphold the dignity and majesty of law and to ensure that the orders passed by it are respected and implemented. An unscrupulous litigant cannot render the process of law unworkable and unimplementable by taking recourse to means which are palpably illegal and adopted only with a view to make its order and decree nugatory. The decree holder cannot be made helpless just because a subsequent suit has been filed for declaration and injunction since in the facts and circumstances of the case it can be seen that all such pleas raised in the plaint have, in fact, merged in the decree and the subsequent orders passed in the said proceeding. The decree holder cannot be made helpless just because a subsequent suit has been filed for declaration and injunction since in the facts and circumstances of the case it can be seen that all such pleas raised in the plaint have, in fact, merged in the decree and the subsequent orders passed in the said proceeding. Moreover, in view of section 47 of the Code of Civil Procedure, all questions relating to execution, satisfaction and discharge of the decree are to be decided by filing an application under the said section and not by filing a separate suit. 20. Moreover, in view of Order 21 Rule 97 or Rule 99 or Rule 101, the scope of proceeding has been expanded and enlarged so as to include all questions arising between the parties and relevant to the adjudication of the application including the questions as to the title of such parties in the property. It was argued that in the instant case, an adjudication has already taken place under Order 21 Rule 97 of the Code of Civil Procedure. In view of such a clear finding in favour of the decree-holder and against the legal heirs and representatives of the original defendant, the filing of the said suit on the self-same cause of action is vexatious and a clear abuse of the process of law. The said suit is frivolous, vexatious and filed seemingly with a view to justify their illegal and forcible entry in the suit premises soon after midnight on the day the day following when the possession was delivered to the petitioner. The learned Counsel had relied upon a decision of a learned single Judge of this Hon'ble Court in 2012(2) C Cr LR (Cal) 635 (Srikanta Roy vs. State of West Bengal & Ors.) where it was held that in considering a writ application against forceful dispossession, the decree-holder is entitled to restoration of possession with police help. 21. In Srikanta Roy (supra) it was held that police authorities must help the decree-holder to protect his possession. In this regard reliance was placed on Paragraph 6 which is reproduced hereinbelow:-- 6. In my view, in such type of cases where the decree-holder after execution of the decree gets possession it is obligation on the part of the police authorities to help the decree-holder to protect his possession. In this regard reliance was placed on Paragraph 6 which is reproduced hereinbelow:-- 6. In my view, in such type of cases where the decree-holder after execution of the decree gets possession it is obligation on the part of the police authorities to help the decree-holder to protect his possession. It is an obligation on the police to see that anybody and everybody cannot in this fashion, by taking law in their own hand, encroach upon someone else's property. This is also an obligation on the part of the police authorities also to see that the order passed by the Court is not violated. The police authorities ought not to have waited for a long time without taking proper steps thereby removing the encroachers and/or trespassers from the property of the writ petitioner who got the possession by execution of Civil Court's decree in a lawful manner. Nobody should be allowed to take law in his own hand, nor he should be allowed to violate Court's mandate and further, the law breaker should not be allowed to get premium since they have violated law. The police authorities should not sat tight by issuing a charge-sheet. It is important to note that public peace and tranquility and maintenance of law and order in the society is the duty of the police and in case police authorities failed to perform their duty properly the writ petition is maintainable. Right to enjoy the property is protected under Article 300A of the Constitution of India. Nobody is authorized or entitled to dispossess the lawful owner from his property by taking law in his own hand thereby creating a social chaos and causing law and order problem. 22. It was argued that elaborate procedures have been laid down under Order 21 of the Code of Civil Procedure any matters relating to obtaining possession by a decree-holder in case of resistance. The opposite parties, in fact, is not entitled to file such suit in view of a clear finding being arrived at in the suit as also in the subsequent proceeding. The said suit is a clear abuse of the process of law and filed with a mala fide motive to render the said order for delivery of possession nugatory. The Court cannot shut its eyes to such patent illegality. The said suit is a clear abuse of the process of law and filed with a mala fide motive to render the said order for delivery of possession nugatory. The Court cannot shut its eyes to such patent illegality. The Code of Civil Procedure gives such power to the Court to even entertain a second application for restoration of possession if it appears to the Court that any attempt is made by the judgment-debtor to render the said decree and order nugatory. It would be a travesty of justice, in the event, the Court refused to exercise its jurisdiction in not restoring the possession of the said decree-holder who had after so many years of litigation ultimately got possession of the suit property. 23. The Court really appreciates the anxiety of the plaintiff that in the event the plaintiff is required to initiate a proceeding for recovery of possession, it might take some time. Already the plaintiff had spent more than 10 years in getting possession of the suit premises from which they claimed to have been dispossessed. However, there is no lis pending in which the Civil Court could pass an order for restoration of possession. The suit had been decreed. In the execution proceeding, the bailiff had delivered possession of the suit premises and filed a report. The said report was taken on record and decree stands satisfied. Thereafter, the Court becomes functus officio. It is not a proceeding under section 144 of the Code of Civil Procedure. In the meantime, the opposite parties have filed a suit which may or may not be completely unmeritorious. Although this Court, on a reading of the plaint, finds it to be prima facie mala fide having regard to the pleadings in the plaint and orders passed in the eviction suit, however, directing the police to execute a decree by evicting the said opposite parties would not be in due process of law, after all, possession is the ninth point in law. The claim may be moonshine and vexatious, but in this proceeding, the said suit cannot be dismissed nor any order could be passed for restoration of possession in favour of the plaintiff. 24. The claim may be moonshine and vexatious, but in this proceeding, the said suit cannot be dismissed nor any order could be passed for restoration of possession in favour of the plaintiff. 24. This Court, with all its sympathy for the plaintiff, is also unable to pass any direction and can only express its anguish in the manner in which sometimes a decree-holder is put to jeopardy and helplessness as it happened in the instant case. 25. Considering the aforesaid facts, this Court finds no reason to interfere with the order passed by the learned Civil Judge in rejecting the application for police help since the decree has already been satisfied. This order will not prevent the decree-holder from initiating proceedings for eviction in accordance with law. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.