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2015 DIGILAW 994 (CAL)

Samar Santra v. Motilal Das

2015-12-23

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the order dated 14th September, 2015 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Misc. Case No. 13 of 2007, the petitioner judgment debtor has filed this application for setting aside the impugned order mainly on the ground that law of limitation was not considered by the learned Court below. 2. According to the petitioner, the opposite party decree holder had filed an eviction suit against the tenant/petitioner. Initially the said suit was dismissed by the learned Court below. Thereafter, the present decree holder filed an appeal against the said judgment and this time the present opposite party/decree holder got a favourble order from the learned Additional District Judge, Fast Track Court. Thereafter, the present decree holder/opposite party filed Execution Case bearing No. 1 of 2006, in which the present petitioner/judgment debtor had contested. 3. The decree holder/opposite party filed a Misc. Case bearing No. 13 of 2007, under Order 21, Rule 97 for Police help as the execution could not be completed due to resistance by the present petitioner. The Executing Court has passed an order in favour of the present opposite party. Challenging that order the present petitioner judgment debtor has filed an application under Section 151 of CPC which was also rejected by the learned Court below. Learned Counsel appearing on behalf of the present petitioner contended that the learned Court below failed to appreciate the provisions of Limitation Act and has come to a wrong conclusion. 4. Learned Counsel appearing on behalf of the opposite party decree holder has contended that the legal battle is going on since 2002 and obtained the decree from the First Appellate Court. Thereafter, he had filed Execution Case in 2006. Nearly nine years have already been completed but he could not get the fruits of the decree. He categorically stated that learned Court below quite rightly held that Police help is necessary. Initially, the Court below had sent the bailiff for execution, who had submitted a report that there is a chance of breach of peace. Considering the materials on record, the learned Court below directed the decree holder to deposit the cost of Police help, which has been deposited by the decree holder/opposite party. So, according to him, there is nothing wrong committed by the learned Court below. 5. Considering the materials on record, the learned Court below directed the decree holder to deposit the cost of Police help, which has been deposited by the decree holder/opposite party. So, according to him, there is nothing wrong committed by the learned Court below. 5. On perusal of the impugned order I find that the learned Court below considered the provision of Article 129 of Limitation Act and interpreted it that period of limitation of thirty days will be counted from the date of resistance or obstruction in case of possession after removing resistance or obstruction of delivery of possession of immovable property decreed or sold in execution of a decree. 6. Police help may be prayed for either in an application under Order 21, Rule 97 or separately without filing any such application or before any specific obstruction. The prayer for Police help may be made by the decree holder either in any application under Rule 97 or 98 separately without filing such application or before any specific obstructions made by a particular person. In a pending execution case for delivery of possession, the decree holder may seek for Police help. If the Executing Court finds from the report of the bailiff that without the Police help the decree cannot be executed in that case Court has the power to pass such an order. Learned Counsel appearing on behalf of the petitioner has relied on a decision reported in AIR 1959 Cal 613 . Factual aspect of that case is substantially different from the case in hand. 7. Here the learned Court below has considered the ‘Police help’ application beyond the prescribed period enshrined under Order 21, Rule 97 of the Code of Civil Procedure. Then it should be inferred that the learned Court below proceeded to decide the matter on merit and condonation of delay was made. It shocks my conscience to say that even after getting a decree, the decree holder has been waiting for more than nine years to enjoy the fruits of the decree. 8. Accordingly, there is no merit in this revisional application. Learned Court below is hereby directed to endeavour all possible ways to put the decree into execution but not later than one month from the date of this order. With this direction, the civil revisional application stands dismissed with cost of Rs. 20,000. 9. 8. Accordingly, there is no merit in this revisional application. Learned Court below is hereby directed to endeavour all possible ways to put the decree into execution but not later than one month from the date of this order. With this direction, the civil revisional application stands dismissed with cost of Rs. 20,000. 9. Let a copy of this order be sent to the respective learned Courts below for their information and taking necessary action in accordance with law. 10. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Revisional application is dismissed.