Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 906 (CAL)

Sasanka Mohan Saha v. Goutam Basu

2014-09-17

SAHIDULLAH MUNSHI

body2014
Judgment : Sahidullah Munshi, J. No one appears for the Opposite Party and hence the matter is taken up exparte against the Opposite Party. This revisional application at the instance of decree-holder/petitioner is directed against order dated May 7, 2011 passed by the learned Additional District Judge, 1st Court, Hooghly in Title Appeal No.67 of 2007. Petitioner filed a suit on September 30, 1994 for ejectment, arrear rent and mesne profit. In that suit a decree was passed on April 27, 2001. The suit was decreed on contest in favour of the plaintiffs and the defendants were directed to hand over peaceful vacant possession of the suit property to the plaintiff within 3 months from the date of the said decree. The defendant was also directed to pay the plaintiff the calculated arrear rent of Rs.20,750/-together with statutory interest, in default the plaintiff was allowed to proceed as per law. Defendant filed an appeal on June 2, 2001 which was numbered as Title Appeal No.130 of 2001. The 1st Appellate Court allowed the appeal in part on contest. The judgment and decree passed by the learned trial Court, however, was affirmed but with certain modification at the ordering portion. A second appeal was filed therefrom which was dismissed under Order 41 Rule 11 of the Code of Civil Procedure. The decree-holder/petitioner filed an application under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure and also under Rule 208 of the Civil Rules and Orders in Title Execution Case No.8 of 2004, which was numbered as Misc. Case No.28 of 2006, for issuing writ of delivery of possession through the assistance of police. In the said application the petitioner/decree-holder stated that vide Order No.39 dated April 26, 2006 the writ of delivery of possession was issued by the learned executing Court and that on June 7, 2005 the process server went to the locale to execute the decree. Both the decree-holder and the judgment-debtor were present. The judgment-debtor was present with his brothers and other family members including some female. It is the case made out by the decree-holder that when the process server asked the judgment-debtor to quit and vacate the premises and to give peaceful delivery of possession of the suit premises to the decree-holder, he denied and threatened the decree-holder and also resisted the process server. It is the case made out by the decree-holder that when the process server asked the judgment-debtor to quit and vacate the premises and to give peaceful delivery of possession of the suit premises to the decree-holder, he denied and threatened the decree-holder and also resisted the process server. He divulged that whoever would go to take delivery of possession he would be physically assaulted. The decreeholder stated before the executing Court that there was breach of the peace. The process server, if wanted delivery of possession, there would have been serious breach of the peace and, ultimately, the process server failed to give delivery of possession and it would not be possible without police assistance. Accordingly, the decree-holder prayed for police assistance in order to execute the decree so that he gets delivery of possession of the suit premises. The decree-holder asserted for the need of 1 Sub-Inspector of Police, 4 armed constables, 2 lady constables in order to execute the decree and to avoid breach of the peace. The decree-holder also asserted that he was agreeable to bear the cost required for the aforesaid purpose. On consideration of the said application and the requirement made thereunder an Order was passed by the learned executing Court on April 17, 2007. The learned executing Court held that the process server asked the judgment-debtor to deliver peaceful possession of the suit premises but he denied rather threatened in the manner that whoever would go to take delivery of possession the judgment-debtor would assault him physically and if the process server wanted to give delivery of possession there would occur serious breach of the peace and considering the gravity of the situation, the learned executing Court allowed the application for police help. It appears from the said Order passed by the learned executing Court that before allowing the said application he duly took note of the deposition of the process server in the execution case. After going through the records, averment made in the petition filed by the decree-holder as also the deposition made by the process server the learned executing Court allowed the application for police help in order to execute the decree. Accordingly, the learned executing Court allowed the petition dated July 7, 2006 filed under Order 21 Rule 97 read with Section 151 and also under Rule 208 of the Civil Rules and Orders. Accordingly, the learned executing Court allowed the petition dated July 7, 2006 filed under Order 21 Rule 97 read with Section 151 and also under Rule 208 of the Civil Rules and Orders. The judgment-debtor, being aggrieved thereby, filed an appeal which was wrongly titled as Title Appeal No.67 of 2007, although the same should have been registered as a Misc. Appeal within the meaning of Order 21 Rule 103 of the Code of Civil Procedure because the Order passed under Order 21 Rule 97 shall be deemed to be a decree. The learned Appellate Court by an Order dated May 7, 2011 allowed the appeal and set aside the Order dated April 17, 2007 passed by the learned Additional Civil Judge (Junior Division), Hooghly, in Misc. Case No. 28 of 2006 arising out of Title Execution Case No.8 of 2004. The learned Appellate Court below, while passing the judgment, held that the decree-holder obtained a decree for eviction of premises tenant in Title Suit No.48 of 1999 and he, thereafter, filed Title Execution Case No.8 of 2004 and in the execution case vide Order dated April 26, 2006 a writ of delivery of possession was issued in compliance whereof the process server went to the suit property to execute the decree on June 7, 2006. The Appellate Court held that it was alleged that the judgment-debtor/appellant accompanied by his family members, henchmen including female members resisted the process server to deliver peaceful possession to the decree-holder by denying to quit and vacate the suit property and threatened to assault in case any effort was made to dispossess him. As there was breach of peace the process server would not deliver possession of the suit premises to the decree-holder in execution of the decree and furnished a report to that effect before the learned executing Court. According to the learned Court below, law relating to an application under Order 21 Rule 97 CPC and an application for police help in executing a decree should commence by petition of complaint and the cause of complaint is resistance or obstruction under Order 21 Rule 97. The decree-holder may obtain an Order though he be put in possession of the property and if he be still resisted by the party and the decree cannot still be effectively executed without police help the decree-holder may apply to Court for grant of such help. The decree-holder may obtain an Order though he be put in possession of the property and if he be still resisted by the party and the decree cannot still be effectively executed without police help the decree-holder may apply to Court for grant of such help. According to the learned Appellate Court below, application for police help is essentially different from an application under Order 21 Rule 97 though the two applications are joined in one petition. The learned Appellate Court below has held that the application for police help under Rule 208 of Civil Rules and Orders is not, by itself, an application for possession nor is it an application under Order 21 Rule 97 of the Code of Civil Procedure. The learned Court further held that it is a common knowledge that police help is sought for in the matter of execution when there is apprehension of breach of peace and the Court has to scrutinize the facts and circumstances to ascertain whether such a prayer would be allowed before it is granted. The learned Appellate Court below has referred to certain judgments placed before it and has sought to justify that the Order passed by the learned executing Court was wrong and no Order for police assistance should be accorded within the meaning of Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure and also under Rule 208 of the Civil Rules and Orders. The learned Court below has opined that from the examination-in-chief of the decree-holder as also the process server it was not clear that as to who the persons resisted the process server to execute the decree. Having heard the learned advocate for the petitioner and having carefully gone through the records as also the judgment and orders passed by the learned executing Court and the Appellate Court below I find that the learned Court of appeal below was not justified in reversing the Order passed by the executing Court in Misc. Case No.28 of 2006 arising out of Title Execution Case No.8 of 2004. Case No.28 of 2006 arising out of Title Execution Case No.8 of 2004. On a plain reading of the Order passed by the learned Appellate Court below it appears to me that the Appellate Court below has not applied its mind and overlooked the statements made in the application filed by the decree-holder on July 7, 2006 wherein every detail was mentioned about how the process server was resisted as also the apprehension of serious breach of the peace, in the event of the process server delivering possession of the suit premises to the decree-holder. On a bare reading through the judgment delivered by the learned Appellate Court below it appears that he has highlighted that since there was no mention of a particular word that there is apprehension of ‘blood-shed’ no order for police help could be granted for executing a decree. Although, the learned Appellate Court below itself held that cause of petition under Order 21 Rule 97 should be resistance or obstruction to the bailiff and although, such cause has been properly explained by the decree-holder in his application under Order 21 Rule 97 read with Section 151 of the Civil Procedure Code and also under Rule 208 of the Civil Rules and Orders, it does seem to me that the learned Court of appeal below has failed to exercise a jurisdiction vested with him under the law in not affirming the Order passed by the executing Court but has also failed to exercise a jurisdiction vested with him under the law not holding that the decree-holder was entitled to execute the decree with the help of police because it was never the object of any decree to be frustrated in absence of its execution in time. The Order impugned is hereby quashed and set aside. The Order passed by the learned Civil Judge (Junior Division) 1st Court, Hooghly, in Misc. Case No.28 of 2006 arising out of Title Execution Case No.8 of 2004 is affirmed and restored. The revisional application is thus, allowed.