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2023 DIGILAW 112 (CAL)

Annapurna Acharjee v. Pravash Roy

2023-01-20

BISWAROOP CHOWDHURY

body2023
JUDGMENT : 1. The record is taken up for orders. 2. This petition is at the instance of a decree-holder and is directed against Order no-19 dated 30/08/2019 passed by Learned Civil Judge Junior Division 1st Court Durgapur in Title Execution Case No – 5/2014 arising out of Title Suit No.225 of 2012. The petitioner being aggrieved by the said Order has come up with this application under Article 227 of the Constitution of India. 3. The case of the petitioner may be summed up thus. 4. The petitioner instituted a suit for eviction against the opposite party being Title Suit No. 225 of 2012 in the Court of Learned Civil Judge Junior Division First Court Durgapur Burdwan praying for recovery of vacant possession of the suit premises. 5. The said suit was taken up for final hearing ex parte by the Learned Trial Judge. By judgment and Order dated April 25 2019, and decree dated June 30, 2019, the suit was allowed ex-parte without cost and the opposite party was directed to quit and vacate the suit premises and hand over the Khas possession in favour of the petitioner within sixty days from the date of passing the order and the petitioner was given liberty to put the decree into execution in the event the opposite party failed to comply the direction of the Court. 6. The opposite party failed to comply the direction of the Learned Court below and in the circumstances the petitioner filed Title Execution Case No-5 of 2019, in Court of the Learned Civil Judge (Junior Division) praying for execution of the decree of the Title Suit No-225 of 2012 dated April 25, 2019 and also praying for Khas possession of the suit premises by breaking padlock through Court process server and on May 16, 2015, the petitioner also filed an application under Section 151 of the Code of Civil Procedure praying for Khas possession by breaking lock of the suit premises. The said application under Section 151 of the Code of Civil Procedure was taken up for hearing by the Learned Court below and on June 24, 2015, the Learned Court below kept the petition in abeyance till the execution of the writ of delivery of possession and by and under Order No – 14, dated September 11, 2019, learned Court below was pleased to allow the said petition under Section 151 of the Code of Civil Procedure dated May 16, 2015 issued the writ for delivery of possession of the decreetal property in terms of the decree through Nazir/bailiff of the Court and directed the Nazir/bailiff to execute the writ and to break open padlock, if any, at the time of execution, and thereafter on December 28, 2015 the execution case was disposed of. As per the order of Learned Court possession of suit premises was handed over to the petitioner/decree holder by breaking open the padlock through process server. As there were few articles of the opposite party in the suit room the same were kept under the custody of the petitioner by the process server after making a list of the said articles. On 30-08-2019, an application under Section 151 of the Code of Civil procedure, was filed by the petitioner/decree holder for taking the articles under the custody of the Court. The application filed by the petitioner was rejected by the Learned Court below. The petitioner being aggrieved by the said order has come up with the present application. 7. It is the contention of the petitioner that the Learned Court below wrongfully held that the articles were not the subject matter of the original suit and the execution case, and no order could be passed regarding any articles which was not subject matter of any suit/proceeding of the Court. It is further contended, that at the time of institution of the suit as well as execution case it was not known to the petitioner about the articles of the opposite party and the same was under lock and key in the room and the petitioner came to know about the said article only on November 19, 2015 and the list of articles was in the record of the Court. 8. In the instant matter although notice was issued upon the opposite party in 2 addresses but the same returned with the remark addressee left. 8. In the instant matter although notice was issued upon the opposite party in 2 addresses but the same returned with the remark addressee left. However considering the nature of the case and the fact that opposite party never appeared before trial Court the case was taken up in his absence. 9. Heard Learned Advocate for the petitioner perused the petition filed and materials on record. 10. Learned Advocate for the petitioner draws attention to the order passed by the Learned Trial Court and submits that the Learned Judge erred, in rejecting the application of the petitioner on the ground that the articles with regard to which the petitioner filed petition under Section 151 CPC for taking custody by the Court were not subject matter of any suit/proceedings of the Court and there was no mention of the said articles in the petition for execution or in the petition U/S-151CPC. Learned Advocate further submits that when the suit room was locked by the judgment debtor and the bailiff handed over possession of the suit room after breaking open the pad-lock there is no scope for the petitioner to know as to what articles are kept inside the suit room and mention the same in the petition for Execution. It is only, after obtaining possession of the suit room by breaking open the padlock the petitioner/decree-holder came to know of the articles found and recorded by the bailiff in the list of inventory. After keeping in custody the list of articles of opposite party/Judgment Debtor for a period of about four years the petitioner made the application. Thus there was no scope to know about the articles/movable property of opposite party/Judgment Debtor at the time of filing Execution application, or application under Section 151 CPC made for breaking open the padlock of the suit room. 11. Upon perusing the petition and the materials on record and upon hearing the Learned Advocate, for the petitioner this Court is of the view that the contentions of the petitioner has some substance. 12. As a decree-holder is not in a position to know as to what articles are lying inside a room locked by the judgment debtor he cannot mention the same in the application for execution. It is only upon obtaining actual possession the decree holder obtains knowledge about the movable property/articles in the suit room of judgment debtor. 12. As a decree-holder is not in a position to know as to what articles are lying inside a room locked by the judgment debtor he cannot mention the same in the application for execution. It is only upon obtaining actual possession the decree holder obtains knowledge about the movable property/articles in the suit room of judgment debtor. Learned Judge dismissed the application of the petitioner/decree holder on the ground that there was no mention of the article in the petition under 151 CPC or in the main petition for execution. Thus the Order dated 30-08-2019 passed by the Learned Judge cannot be sustained and the same should be set aside. Now upon setting aside the Order passed by the Learned Court below although the usual course is to direct the Learned Court to reconsider the application in accordance with law after hearing the necessary parties but considering the fact that the petitioner is having the custody of the articles which were found at the suit room upon breaking open the lock, for about seven years and the fact Order XXI Rule 35 of the Code of Civil Procedure does not contain specific provision with regard to articles which are found at the suit premises at the time of delivery of possession certain guidelines are to be issued for disposing such applications, to avoid further disputes. Although there is no specific provision as to what procedure should be followed in the event immovable property is handed over to decree-holder by breaking open the padlock in the absence of judgment debtor and some movable properties of judgment debtor are found lying inside the room, and although it is difficult for executing Court to arrive at a decision upon receipt of bailiff’s report or application of decree-holder with regard to the said articles/movable properties, but as Courts have inherent power to do justice in absence of specific provision the inherent power under Section 151 of the Code of Civil Procedure should be invoked to do the needful. 13. Now in Order to do justice by invoking inherent power, it is necessary to enlighten ourselves from judicial precedents, laws applicable in High Courts of other States, on the matter in issue and procedure followed in other statutes with regard to the subject matter. 14. 13. Now in Order to do justice by invoking inherent power, it is necessary to enlighten ourselves from judicial precedents, laws applicable in High Courts of other States, on the matter in issue and procedure followed in other statutes with regard to the subject matter. 14. Before venturing into the arena of judicial precedents or laws applicable in High Courts of other States, or procedure in other statutes with regard to matter in issue first of all it is necessary to discuss the relevant provisions of the Code of Civil Procedure on the subject matter; As the procedure with regard to Execution Decree for immovable property is provided under Rule 35 of Order XXI of the Code of Civil Procedure the relevant provision is quoted below for clarity. 15. Rule – 35 Decree for immovable property. 1) Where a decree is for the delivery of any immovable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and if necessary removing any person bound by the decree who refuses to vacate the property. 2) Where a decree is for the joint possession of immovable property such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum or other customery mode at convenient place the substance of the decree. 3) Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree does not afford free access the Court through its officers may after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. 16. Thus upon reading the provisions contained in Rule 35 of Order XXI of Code of Civil Procedure it will appear that there is no provision with regard to movable property of judgment debtor found in suit room at the time of delivery of possession in the absence of judgment debtor. 16. Thus upon reading the provisions contained in Rule 35 of Order XXI of Code of Civil Procedure it will appear that there is no provision with regard to movable property of judgment debtor found in suit room at the time of delivery of possession in the absence of judgment debtor. However upon perusal of the High Court Amendment of State of Madras it appears that after sub-rule-3 of Rule 35 of order XXI CPC, the following provision is added as sub-rule-4. ‘Where delivery of possession of a house is to be given and it is found to be locked, orders of Court shall be taken for breaking open the Lock for delivery of possession of the same to the decree holder. If it is found at the time of delivery that there are movables in the home to which the decree-holder has no claim and the judgment-debtor is absent or if present does not immediately remove the same the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot have the same attested by them and leave the movables in the custody of the decree-holder after taking a bond from him for keeping the articles in safe-custody pending orders of Court for disposal of the same. The Officer shall then make a report to the Court and forward therewith the attested inventory taken by him. The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movable within thirty days from the date of the notice and in default they will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance if any will be refunded to the judgment-debtor. Provided that if movable articles referred to the above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such a case call upon him to receive the amount from Court within three months.’ 17. Provided that if movable articles referred to the above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such a case call upon him to receive the amount from Court within three months.’ 17. Upon considering the facts of the case and the provisions contained in Rule 35 of Order XXI of the Code of Civil Procedure this Court is of the view that as Order XXI of the Code of Civil Procedure is silent with regard to the issue of movable property found in the room of judgment debtor at the time of delivery of possession and during his absence it would be prudent to follow the procedure laid down by Madras High Court Amendment, numbered as Sub-rule-4 of Rule 35 of Order XXI of the Code of Civil Procedure. Although the entire procedure laid down by Madras High Court Amendment may not be followed but substantial portion of the procedure should be adopted till amendment is made in Rule 35 of Order XXI of Code of Civil Procedure. 18. Thus when report comes before the Court executing a decree that at the time of delivery of immovable property to decree holder some movable properties were found inside the suit room and the judgment debtor is absent or if present does not immediately remove the same the officer/bailiff entrusted with the warrant for delivery shall make an inventory of the articles so found, in the presence of witnesses on the spot and leave the said movable properties in the custody of the decree holder after taking a bond from him for keeping the articles in safe-custody pending orders of Court for disposal of the same. 19. The officer/bailiff shall make a report to the Court and forward therewith the inventory made by him. The Court upon receipt of the report of bailiff or if an application is made in this regard by decree-holder on considering the application along with the report issue a notice to the judgment-debtor requiring him to take delivery of the said movable within such period as the Court deems fit. In the event notice cannot be served in the usual course necessary news paper publication may be made, and one copy may be affixed in a conspicuous place of the Court premises. In the event notice cannot be served in the usual course necessary news paper publication may be made, and one copy may be affixed in a conspicuous place of the Court premises. In default of the judgment debtor appearing to take delivery of the articles they will be sold in the public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance if any will be refunded to the judgment-debtor. In the event movable articles found are perishable the Court shall sell them in public auction immediately. The notice to the judgment debtor shall in such a case call upon him to receive the amount from Court within such period as the Court thinks fit. 20. In the facts and circumstances this Revisional Application stands allowed. The impugned Order no-19 dated August 30, 2019 passed by Learned Civil Judge (Junior Division) 1st Court Durgapur Burdwan in Title Execution Case No. 5 of 2014 arising out of the Title Suit No-225 of 2012 is hereby set aside. Learned Judge is directed to decide the application filed by the decree holder/petitioner in the light of the observation made herein above, and upon guidance from Madras High Court Amendment. 21. Let a copy of this Order be send to the Hon’ble Chief Justice with a request to His Lordship for consideration regarding amendment of Rule 35 of Order XXI of the Code of Civil Procedure.