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2017 DIGILAW 810 (CAL)

Sk. Badroddoza v. Sk. Abdullah

2017-10-23

MIR DARA SHEKO

body2017
JUDGMENT : Mir Dara Sheko, J. 1. Heard Mr. Prasanta Kumar Banerjee assisted by Mr. Subir Banerjee appearing for the petitioner, while there is no representation on behalf of the opposite party. The petitioner has come up before this court under Article 227 of the Constitution of India assailing Order No. 41 dated September 14, 2016 passed by learned Civil Judge (Jr. Division), Kalna, Burdwan in connection with Title Execution Case No. 4 of 2011 arising out of Title Suit No. 133 of 2002 (Sk. Badroddza v. Sk. Abdullah). 2. Mr. Banerjee submitted that while there is a decree passed by learned trial Court in favour of his client, then his client should be protected in all respects. Submitted further that on earlier two occasions his client was prevented from enjoying peaceful possession in the subject property by the opposite party, and pursuant to the order of learned executing Court police protection was availed of during harvesting season. 3. On the last occasion when similar occasion arose consequent to the resistance attempted by the opposite party-judgment debtor, the petitioner moved learned Court below in Title Execution Case No. 4 of 2011. In turn, learned executing Court called for report from the local police station, but the petitioner did not get proper assistance from the officer in charge of Manteswar police station, since, according to the petitioner, necessary police assistance was not provided. Learned executing Court, instead of advancing further, kept casual observations: "In such circumstances, I find no ground to issue any further direction upon the O/C, Manteswar P.S." 4. Mr. Banerjee also could not satisfy this Court as to whether his client had put any further prayer in the execution case to proceed against either the erring police officer or the defaulting judgment-debtor who was said to have violated or attempted to have violated direction of the decree. 5. From the materials on record there is nothing to ascertain that the opposite party had ever taken any legal step to get the said ex parte decree set aside. Meaning thereby, the ex parte decree stands in favour of the petitioner in respect of the subject property as good as valid. 5. From the materials on record there is nothing to ascertain that the opposite party had ever taken any legal step to get the said ex parte decree set aside. Meaning thereby, the ex parte decree stands in favour of the petitioner in respect of the subject property as good as valid. In the similar situation, at the instance of the petitioner in CO No. 424 of 2015, this Court with the anxious observations had disposed of the Article 227 application so that the petitioner would approach learned executing Court for appropriate relief; and, in turn, learned executing Court would not feel hesitant to stretch the relief as would be available within the Code. The relevant portion of the order dated March 23, 2015 passed by this Court in CO No. 424 of 2015 is set out hereinbelow:- "It is really unfortunate that the Executing Court did not advert to the provisions contained under Order XXI Rule 32 of the Code of Civil Procedure, more particularly sub-rule 5 thereof, which empowers the Court to direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor. The explanation appended thereto defines the expression "the act required to be done" to cover prohibitory as well as mandatory injunction. If there is an allegation as to the violation of the decree for permanent injunction, the Executing Court cannot shirk its responsibility to adjudicate the said application and may pass an appropriate order under Order XXI Rule 32 of the Code of Civil Procedure. It is inconceivable that the decree-holder has to initiate a fresh suit alleging that the decree for permanent injunction is violated by the judgment-debtor and seek further reliefs. The Executing Court has not properly applied its judicial mind on the issue and have dismissed the said application on extraneous consideration, which is unsustainable in law. The impugned order is, therefore, set aside. The matter is remitted back to the Executing Court, who shall consider the said application afresh in the light of the provisions contained under Order XXI Rule 32 of the Code of Civil Procedure and shall dispose of the same by recording reasons." 6. The impugned order is, therefore, set aside. The matter is remitted back to the Executing Court, who shall consider the said application afresh in the light of the provisions contained under Order XXI Rule 32 of the Code of Civil Procedure and shall dispose of the same by recording reasons." 6. The aforesaid order of this Court, of course, bears sufficient indication as to what is to be done in rendering appropriate relief in the appropriate situation, so long there is the decree of the Court through the process of execution only if it would not otherwise be time-barred by operation of law. 7. From the impugned order as it reveals that learned executing Court had taken very casual approach by keeping observations that it did not find any ground to issue any further direction upon the officer in charge of Manteswar police station, instead of keeping the execution proceeding alive for taking steps by the decree-holder. 8. Needless to mention, the hand of the Court is not so short, rather it is too long to catch hold of any erring element violating the order of the Court - be he an officer of the police station or otherwise. Therefore, if the petitioner files appropriate application that shall have to be dealt with appropriately by passing a speaking order so that sanctity and dignity of the decree passed in the title suit by learned trial Court can not only be maintained but also be safeguarded in true letter and spirit, if the same would not be barred by law of limitation. Otherwise, passing of decree in the manner it was done would be infructuous and meaningless and judicial forum would be ludicrous which learned court below in any sense cannot support as a part of the system of the judicial administrative system. 9. Be it further mentioned that so long the decree of the court would remain alive, it shall be the duty of learned Court below to entertain the application of the decree-holder, if any violation of the same is complained of; and, if necessary, learned executing Court shall also not be hesitant to put the judgment-debtor behind the bar in accordance with the provisions of the Code. 10. 10. In view of the above observations, the impugned order dated September 14, 2016 where learned executing Court took very casual approach, as indicated above, is set aside and quashed by giving liberty to the petitioner to file appropriate application assisting the court to record just and proper order in satisfying the decree passed in the suit; and for the purpose learned executing Court shall be free and at liberty to record appropriate order. 11. The CO is accordingly allowed setting aside the order impugned. No order as to costs. 12. The department is directed to communicate this order at once to learned court below for information and compliance. Certified photostat copy of this order, if applied for, shall be given to the parties.