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Allahabad High Court · body

2018 DIGILAW 679 (ALL)

Gopal v. Amar Jeet Singh

2018-03-20

MANOJ MISRA

body2018
JUDGMENT : Heard Sri Rama Kant Tiwari for the petitioners and the learned Standing Counsel for respondents 8, 9 and 10. The petitioners are aggrieved by an order dated 7th September, 2013 passed by Additional Civil Judge (Senior Division), Court No.2, Varanasi by which the petitioners, who are decree holder, have been required to deposit an amount of Rs.85,307/- towards expenses for getting police help to enable execution of a decree obtained by the petitioners. The petitioners had obtained a decree against the private respondents in Original Suit No.1192 of 1995. The said decree was put to execution by filing Execution Case No.5 of 2011. In the execution proceeding the court appointed Amin submitted a report that for execution of the decree assistance of police force would be required as the judgment debtors were offering resistance. On the report of the Amin, the court requested district administration to provide police help in response to which the Senior Superintendent of Police, Varanasi raised a demand of Rs.85,307/-. By the order impugned, the execution court directed the decree holder (the petitioners herein) to deposit the demanded amount within fifteen days. The petitioners claim that there is no legal provision under which such demand could be raised against a decree holder. More over, the State has to provide police support to ensure execution of a decree inasmuch as it is State’s duty to maintain majesty of court. On 10th December, 2013, when the matter was placed before this Court, following order was passed:- “The submission of the learned counsel for the petitioners is that for execution of a decree, Execution Case No. 5 of 2011 was filed by the petitioners. As per Amin Report 6 Ga, police assistance was required in which connection, a letter was written to the S.S.P., Varanasi and the S.S.P., Varanasi reported to the Court that for providing security for one day, a sum of Rs. 85,307/- would be required. On the above report, the court below directed the decree-holder to deposit the aforesaid amount, within 15 days with the police department. The submission of the learned counsel for the petitioners is that for execution of a decree passed by a Court, it is the responsibility of the Court to ensure proper execution of the decree and the decree-holder is not required to pay for the police support. The submission of the learned counsel for the petitioners is that for execution of a decree passed by a Court, it is the responsibility of the Court to ensure proper execution of the decree and the decree-holder is not required to pay for the police support. Learned counsel for the petitioners has submitted that there is no provision under the Code of Civil Procedure by which a decree-holder can be directed to deposit the amount for seeking police support for execution of a decree. Learned Standing Counsel, who has accepted notice on behalf of respondents 8, 9 and 10, may seek instructions so as to assist the Court whether there is any provision of law, which may require a decree-holder to deposit the expenses for seeking police support for execution of a decree passed by the Court. As prayed, put up on Monday i.e. on 16.12.2013.” The matter remained pending since then. Now, the learned standing counsel has been able to obtain instructions. According to his instruction, the amount demanded by the police is justifiable under Sections 13 to 15 of the Police Act, 1861 as also Regulation 198 of the U.P. Police Regulations. A perusal of the provisions of Sections 13 to 15 of the Police Act, 1861 would reveal that they do not apply to the given situation because it is not a case where police help has been asked by any individual for his own protection or security. Here, to maintain the majesty of court and the law, the Court, to ensure that the decree passed by it is executed and unlawful resistance offered by the judgment debtor is overcome, has sought for police help. Therefore, the provisions of sections 13 to 15 of the Police Act, 1861 are not attracted. The other provision which has been relied upon by learned Standing Counsel to justify the demand raised is Regulation 198 of the U.P. Police Regulations. Regulation 198 of the U.P. Police Regulation contemplates a situation where extra security is required by departments of the Government. First of all, Court cannot be construed as a department of the Government because that would, by itself, be against the basic structure of our Constitution that provides for separation of powers; and, secondly, security is not sought by the court but help is sought to ensure that decree is enforced. First of all, Court cannot be construed as a department of the Government because that would, by itself, be against the basic structure of our Constitution that provides for separation of powers; and, secondly, security is not sought by the court but help is sought to ensure that decree is enforced. Therefore, the said provision would also not support the demand raised. Another provision on which reliance has been placed is paragraph 534 of Chapter XXI of General Rules (Civil). Paragraph 534 of Chapter XXI of General Rules (Civil) provides that when Amin has to make an attachment under an order of the Court, and he apprehends that resistance will be offered by the judgment-debtor or any other person he may apply for requisite police help if and when necessary, subject to certain conditions. The conditions which are provided in paragraph 534 of Chapter XXI of General Rules (Civil) are as follows: (i) Application for such assistance should be made through the Presiding Officer of the Court who should not forward the application unless he is satisfied that the attachment cannot be effected without police assistance. (ii) The Superintendent of Police will be entitled to refuse assistance but he should not ordinarily refuse it unless he has not the necessary force available. When he refuses assistance, he will inform the Presiding Officer of the Court of the reasons for his refusal. (iii) If in any particular case, for reasons of urgency, it is not possible to resort to this procedure, the Amin may apply direct to the Officer-in-charge of the police station concerned who may refuse to give assistance but should inform the Superintendent of Police, immediately of his reasons for such refusal. Paragraph 534 of the General Rules (Civil) do not provide for payment/deposit of expenses by the decree holder for securing police help. What it provides is that the court must record its satisfaction that police assistance is required for effecting attachment. Upon such request, in ordinary course, police force should not be refused unless adequate police force is not available. Learned counsel for the petitioners has stated that he has gone through the provisions of the Code of Civil Procedure; General Rules (Civil); and U.P. Police Regulation, but could not find any provision which may require decree holder to deposit cost for the police help/assistance to secure execution of the decree. Learned counsel for the petitioners has stated that he has gone through the provisions of the Code of Civil Procedure; General Rules (Civil); and U.P. Police Regulation, but could not find any provision which may require decree holder to deposit cost for the police help/assistance to secure execution of the decree. Learned Standing Counsel also could not point out any other provision than what has been discussed above. In the view of the Court, maintenance of law and order in the society is a paramount duty of the State. The court has power to seek police help for enforcement of its decree or order. Therefore, in absence of any specific legal provision enabling the police to raise a Bill on the Court for supply of police help to enforce court’s decree or order, requiring the decree holder to sustain the expenses for police help would not be appropriate because if, for helping the Court to enforce its decree or order, money is demanded by the police then a situation may arrive where no poor person would ever be able to have the fruits of a decree or order passed in his favour. Such a situation may result in failure of judicial system. Ordinarily, a litigant seeks justice by depositing prescribed court fee. He may also be required to make deposit of costs as per the discretion of the court or as per the rules applicable or the procedure prescribed. He may voluntarily deposit expenses to ensure prompt police support, particularly, in a case where adequate police force is not available at the station concerned so that expenses for its mobilization are promptly available. But the decree holder cannot be deprived of the fruits of the decree held by him only because he cannot foot the Bill for police force mobilization. Even while requiring him to deposit costs, the court has to apply its mind to the facts of the case and discretion in that regard should be exercised judicially and not in a routine manner. In view of the discussion made above, this Court considers it appropriate to set aside the order dated 7th September, 2013 passed by Additional Civil Judge (Sr. Div.), Court No.2, Varanasi in Execution Case No.5 of 2011 to the extent it requires the petitioners to deposit Rs.85,307/- for police help as sought by the court appointed Amin. In view of the discussion made above, this Court considers it appropriate to set aside the order dated 7th September, 2013 passed by Additional Civil Judge (Sr. Div.), Court No.2, Varanasi in Execution Case No.5 of 2011 to the extent it requires the petitioners to deposit Rs.85,307/- for police help as sought by the court appointed Amin. The execution court shall proceed further with the execution in accordance with law. However, in case any specific provision of law is brought to the notice of the execution court under which such demand can be raised by the police, which could be charged from the decree holder under the law, the execution court will be at liberty to pass a fresh order in that regard after recording reasons. The petition stands allowed to the extent indicated above.