Calcutta High Court
Narayan Chandra Dhar vs Khokon Routh on 17 September, 1998
Equivalent citations: (1999)1CALLT432(HC)
JUDGMENT P. K. Samanta, J.
1. None appears on behalf of the opposite party. Persuant to the order of this court copy of the revisional application was sent under registered post with A/D to the opposite party but the same returned back with the postal endorsement 'not claimed'. The petitioner has also filed an affidavit of service stating that a copy of the revislonal application was also served on 9.2.98 upon the learned advocate who appeared on behalf of the opposite party in the City Civil Court at Calcutta. The same is kept on record.
2. The petition under Rule 208 of Civil Rules and Orders praying for a direction upon the police authority to render all assistance for execution of the writ for delivery of possession by court's bailiff filed by the decree holder/petitioner in the ejectment Execution Case No. 21 of 1996 was rejected by the City Civil Court at Calcutta by its order No.27 dated 6.12.97.
The said order of rejection was made by holding that the decision (Smt. Usha Ghosh v. Rabindra Nath Das & Ors) held that in the matter of delivery of possession in an execution proceeding the court can give police assistance for execution only in exercise of the power under Order 21 Rule 97 of the Civil Procedure Code read with Rule 208 of the Civil Rules and Orders and not otherwise. Accordingly, it was held that the decree holder/petitioner is not entitled to an order for execution of the decree for delivery of possession through police assistance in a petition filed under the provisions of Rule 208 of Civil Rules & Orders alone. Such order of dismissal of the petition of the decree holder under Rule 208 of Civil Rules & Orders has been impugned in this revisional application.
3. The material facts stated in the petition under Rule 208 of the Civil Rules & Orders (herein after referred to as the Civil Rules) may briefly be stated as follows :--
The decree holder/petitioner got a decree for recovery of possession against the opposite party in ejectment suit No.228 of 1991 on 28th day of December, 1995. The said decree was put Into execution and in the execution case the court bailiff was directed to deliver possession of the decretal property by breaking open the padlock of the suit premises on 15.4.96. The court bailiff returned the unexecuted writ with a report dated 15.4.96 stating that the contents of the writ of possession and the decree were read over and explained to the judgment debtor/opposite parly and he was asked to vacate the decretal property as per schedule of the writ by removing all articles therefrom. The said Judgment debtor heard the contents of the same and not only refused to vacate the decretal property but became furious and along with his 4/5 associates, who refused to disclose their names, put up strong resistance against taking over possession of the decretal property. Since there was serious apprehension of breach of peace so writ of possession could not be executed so the same was returned unexecuted. In these state of things, the decree holder/ petitioner filed the application under Rule 208 of said Civil Rules on 23.5.96 praying for a direction upon the officer in charge, Munchlpara P.S. to render all assistance in executing the writ for delivery of possession through court bailiff in the above execution case.
4. The only issue for decision in this revislonal case is that in view of the Divisional Bench Judgment of this court (supra) wheather an application under provisions of Rule 208 of the said Rules alone, for police help in executing the decree for possession of immovable property without taking recourse to the provisions of Order 21 Rule 97 of the Code is maintainable or not. To appreciate the legal position in this regard, it is necessary to look into the provisions prescribed both in Rule 208 of the said Civil Rules and Order 21 Rule 97 of the Code which are reproduced below :--
Rule 208 :
(1) A decree holder praying for police help in execution shall state in his application the full reasons thereof, supported, if required, by an affidavit. The court may further examine the decree holder or such other persons as it thinks fit touching the necessity of police help. If upon consideration of all the facts and circumstances, the Presiding Judge is of the clear opinion that there are reasonable grounds to suppose that execution will not be effected without serious danger to the public peace, he may, after recording his reason for so doing, make a request to the Superintendent of Police of the District for such police aid as the latter may be able to give in the execution of the writ it is to be understood that police help is to be regarded as an extreme step and it should not be recommended unless the court is fully convinced of the existence of a grame emergency.
Order 21 Rule 97 :--
(1) Where the holder of a decree for the possession of Immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.
(2) Where any application is made under Sub Rule II), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
5. Upon bare perusal of the aforesaid two provisions, it is evident that while Civil Rule 208 provides for execution of a writ with the aid of police. Order 21 Rule 97 of the Code provides for adjudication of an application made thereunder complaining resistance and obstruction by any one in obtaining possession of the property by the holder of a decree for possession of immovable property or by the purchaser of any such property sold in execution of a decree. Rule 101 of Order 21 prescribes that all questions including questions relating to right, title and interest in the property arising between the parties to a proceeding on an application under Rule 97 of Order 21 shall be determined by the court dealing with the said application and not by a seperate suit. Rule 98 of Order 21 lays down that upon determination of all the questions referred to in Rule 101 the court shall make an order allowing the application and directing that the applicants be put into possession of the property or dismissing the application or by passing such other order or orders as in the circumstances it may deem fit. Again sub-Rule (2) of Rule 98 of Order 21 reads as under :--
"Where upon such determination, the court is satisfied with the resistance or obstruction was occasioned without any just because by the judgment-debtor or by some other person at his instigation or on behalf or any transferry, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant put into possession of the property and where the applicant is still resisted or obstructed in obtaining possession the court may also at the instance of the applicant order the judgment/debtor or any person acting at his Instigation of on behalf of, before detained in the civil prison for a term which may extend to 30 days."
6. Thus the provisions as aforesaid under Order 21 do not in terms provide for any order by the court for execution of the decree through police help. It, however, cannot be disputed that even under the said provisions the court upon determination of all questions as above will be empowered to grant police help for the purpose of execution of a decree for possession of immovable properly. This position-in law cannot be disputed because of the inherent power under section 151 of the Code with which the court is invested. It may so happen that even after determination of all the questions as enumerated in Rule 101 of Order 21 arising between the parties in a proceeding on the application under Rule 97 or Rule 99 of Order 21 there may still be resistance against execution of the decree for possession of the Immovable property by the self same party or parties to the said proceeding. In such circumstances only course will be left open to the court to execute the decree through police help or with the aid and assistance of the police. Thus, it is clear that prosecution of remedy for recovery of possession of immovable property with the help of the police is by way of an aid to execution and not execution itself. This view finds Its support in the decision of this court reported in 92 CWN 507 (Md. Salim v. Md. Assim. & Ors.) which held that the court can grant police help to the decree holder under section 151 of the Civil Procedure Code, on an application under Order 21 Rule 35 of the Code filed by the decree holder. The order granting police help under section 151 of the Code is an ordinary mode or procedure to implement the execution of a decree. It is an aid to execution and not the execution itself. It is not by Itself an application for possession note it is an application under Order 21 Rule 97 of the Civil Procedure Code. The very nature of the application for police help under section 151 of the Code of Civil Procedure Code may be in relation to an application under Order 21 Rule 35 of the Code is essentially different from an application under Order 31 Rule 97 of the Code and such an Order can be made by the executing court. Onl such application under Order 21 Rule 35 of the Civil Procedure Code filed by the decree holder for recovery of the suit property following the provisions of Rule 208 of the Civil Rules & Order.
7. The Division Bench Judgment of this court (Smt. Usha Ghosh v. Rabtndranath Das & Ors.) upon which the learned trial court placed Its reliance has the foundation of certain exceptional factual circumstances. In that case in execution of a decree for possession the executing court had Issued a simple process under Order 21 Rule 24(3) of the Code, But the decree holder got it executed forceably with police help obtained surreptitiously under administrative orders passed under section 144 of the Code of Criminal Procedure by the Executive Magistrate. Since the learned Magistrate passed an ex-parte order for police help only on the basis of allegation that there is a possibility of resistance at the time of taking possession by the bailiff and further since the Civil Procedure Code contemplates a procedure, hi case a resistance is put at the time of taking over possession by the bailiff, so it was held that such order was passed under section 144 for an unauthorised purpose at the behest of the decree holder as the Executive Magistrate has no authority or Jurisdiction to pass order for police help for the purpose of taking over property on the basis of decree obtained by the Civil Court. In that context it was observed that in the matter of taking over of possession on the basis of an execution of process started by the executing court, the only authority who can give police assistance is the, executing court and no other, and by complying with provisions of Order 21 Rule 97 of the Civil Procedure read with Rule 208 of the Civil Rules and Orders. The aforesaid decision ts not on an issue presently Involved in this revlslonal application nor it lays down that in all cases of-reslstance only course left open is under Order 21 Rule 97 read with said Rule 208 of the Civil Rules and Orders but not the course under said Rule 208 alone. It may be noted in this connection that under Rule 208 of the Civil Rules and Orders, the orders for police help for taking over possession in execution of decree could be passed by the executing court Itself and in the manner as prescribed therein which would not be in any event in the nature of administrative orders. Therefore the said decision cannot be read as to laying down a proposition that in a case where the Judgment/debtor himself and/or the persons on his behalf merely puts up a physical resistance to the execution of the decree for delivery of possession, the decree holder will have to seek again an adjudication of his rights in the property against self same person against whom he obtained a decree or against the persons who on behalf of the judgment debtor put up resistance to such execution without setting up any independent right therein as a third party.
8. The terms of Rule 208 of the Civil Rules are very clear. The police help is regarded as an extreme step and it is to be understood that it should not be recommended unless the court is fully convinced of the existence of a grave emergency and it further stipulates that the executing court upon consideration of all the facts and circumstances if it is of the clear opinion that there are reasonable grounds to suppose that execution will not be effected without serious danger to the public peace then it may after recording his reasons for so doing make a request to the police for such police aid in execution of the decree. The decree holder praying for police help in execution must state in his application the full reasons therefor and in consideration of the said application court must examine decree holder and such other persons as it thinks fit touching the necessity of police help. If these very clear stipulations are read side by side with the provisions under Order 21 Rules 97. 98, 100 & 101 of the Code it is clear that said rule 208 stands on a different footing than the aforesaid rules under Order 21. Under the said rules of the Code questions may be raised relating to the executablllty of the decree against the Judgment debtor or the persons who have some semblance of right, Utle and Interest in the properly in question and resisted the execution on such account. But Rule 208 of the Civil Rules does not speak of such circumstances but conceives of a situation where the Judgment/debtor or any other persons without any semblance of right, title and interest in the decretal property obstruct due process of the court and if due execution is enforced then it may lead to the breach of public peace in the locality.
9. That again as observed in the case of Gopi Krishna Matty v. Judhistir Dey such extreme step for police help must not be taken with undue haste which will not fit with the concept of caution and circumspection which are required to be resorted to before allowing an application for police help and such an extreme step is not contemplated against a person who has put up an independent right as a third party without afforiding an opportunity of hearing to the person actually in possession but not claiming through Judgment/debtor by way of his purported bid to assert Independent right.
10. Thus, in conclusion. It cannot be said that an application for police help for execution of a decree for possession of Immovable property must necessarily be under Order 21 Rule 97 but not under Civil Rule 208 of the said Civil Rules alone under any circumstances whatsoever. As pointed out hereinbefore if an application is made under Rule 208 of the said Civil Rules, the executing court before making an order for police help will necessarily consider the facts and circumstances made out in the petition by the decree holder and will give opportunity of hearing to the Judgment debtor and such other persons as it thinks fit and proper. If it is of the opinion that there are reasonable grounds to suppose that the execution will not be effected without danger to the public peace if police help is not provided and the judgment debtor and/or such other persons, who had resisted and are supposed to offer resistance in the execution of the writ, have no semblance of Interest in the property in question but merely obstructed the due process of court which may cause danger to the public peace then only it will pass order for police help. If, however, in course of consideration of the application under Rule 208 of the said Civil Rules it appears to the court that a semblance of right, title and Interest in the decretal immovable property has occasioned resistance to the execution of the decree then the court may treat the same as an application under Order 21 Rule 97 by permitting the decree holder to put forward his further pleadings in terms of the said provisions of Code and will thereafter invite pleadings from the parties resisting the execution and will decide the same as per the provisions of Code as stated hereinbefore for the purpose of granting police help.
11. In all these views the impunged order rejecting the petition of the decree holder petitioner for police help under Rule 208 of Civil Rule and Orders suffers from irregularity in exercise of jurisdiction by the court. Accordingly the Impugned order is set aside. The application of the decree holder for police help under Rule 208 of the Civil Rules and Orders is sent back to the learned court below for disposal afresh in the light of the observation made hereinbelow.
12. The learned court below is accordingly directed to dispose of the application under Rule 208 of the Civil Rules and Orders within a period of two months from the date of receipt of this order.
13. The re visional application thus stands disposed of.
If urgent xerox certified copy of this order is applied for by the petitioner, the same will be given as expeditiously as possible.
14. Application disposed of