Calcutta High Court (Appellete Side)
Narugopal Ghorai vs Prakash Chandra Ghorai & Ors on 13 March, 2025
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 4257 of 2023
Narugopal Ghorai
VERSUS
Prakash Chandra Ghorai & Ors.
For the petitioner: Mr. Sounak Bhattacharyya, Adv.
Mr. Sounak Mandal, Adv.
Ms. Shohini Chakraborty, Adv.
for the opposite parties: Mr. Kaushik Chowdhury, Adv.
Ms. Soumoyadipa Kanu, Adv.
Judgment on: April 21, 2023
Last heard on: February 28, 2025
Biswaroop Chowdhury,J:
1.The petitioner before this Court is a judgment Debtor in a suit for preferential right under Section 22 of the Hindu Succession Act 1950 filed by the opposite party no-1 and is aggrieved by the Order dated 18.11.2023 passed by Learned Civil Judge Junior Division at Haldia in Title Execution Case No. 2 of 2019 arising out of Title suit No. 92 of 2007. The petitioner being aggrieved by the Order dated 18.11.2023 passed by the Learned Executing Court in allowing the petition filed 2 by the Decree-holder/opposite party no-1 for police help, has come up with the application under Article 227 of the Constitution of India.
2. The contention of the Decree-holder/opposite party no-1 before the Learned Executing Court was that the process-Server upon issuance of writ of delivery of possession of suit property on 10/01/2023 went to the suit property to deliver the possession. However the Judgment Debtor was not present in his house and the process server was resisted by the wife and daughter of the Judgment Debtor as well as other persons. The petitioner prayed for police help to execute the decree.
3. Upon perusing the Execution Report and the petition for Police Help the Learned Executing Court was pleased to allow the petition for police help by observing and directing as follows:
'On perusing the execution report it can be found that the wife and daughters of Judgment Debtor No. 01 had denied to vacate the suit land.
It can be ascertained from the record that the Decree Holder's rights upon the scheduled property are getting violated with this act of the Judgment Debtor. It also appears to the Court that in spite of the direction of the Court the Judgment Debtor is obstructing the Decree Holder to take possession over the scheduled property.
The Decree Holder is praying for police Help, upon the Schedule property.3
The Decree Holder is also praying for a Lady Constable as the Delivery of possession upon the suit property was being obstructed by the wife and daughters of Judgment Debtor No. 01.
It can also be found from the record that no appeal is pending against this suit vide Order No. 02 dated 03.09.2019.
The Court is directing to provide one S.I., one Lady Constable and one Gents Constable for the purpose of execution of decree.
Therefore, S.P. Purba Medinipur is hereby directed to furnish and report in regard to the Police costs for the purpose of execution of decree passed in the original Title Suit No. 92 of 2007 as Decreed on 27-05-2019. Otherwise, the execution proceedings cannot proceed and the decree cannot be executed.
4. The petition dated 18.11.2023 filed by the decree holder is allowed ex- parte without any order of costs and hereby disposed of.' The petitioner being aggrieved by the Order dated 18-11-2023 passed by the Learned Executing Court has come up with this application under Article 227 of the Constitution of India.
5. It is the contention of the petitioner that the Learned Trial Judge in exercise of its jurisdiction acted illegally and with material irregularity by passing the impugned order. It is further contended that the Learned Trial Judge in exercise of its jurisdiction acted illegally and with material irregularity by failing to appreciate that the opposite 4 party no-1 had never served the copy of the application under Order 21 Rule 97 of the Code of Civil Procedure. It is also contended that the Learned Judge acted illegally by allowing the application for police help ex-parte and without giving any opportunity of hearing to the petitioner.
6. Pursuant to the filing of this application notice was issued upon opposite party no-1. However notice with regard to other opposite parties is dispensed with Opposite party no-1 appeared and contested the case.
7. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party no-1. Perused the petition filed and materials on record.
Argument of the petitioner.
8. Learned Advocate for the petitioner submits that the Learned Trial Court while allowing the application for police help under Order 21 Rule 97 of Code of Civil Procedure did not direct the opposite parties herein to serve a copy of the said application upon your petitioner in order to allow the petitioner to object the same. Therefore by the order of the Learned Trial Judge the principles of natural justice have been grossly violated. Learned Advocate further submits that the bailiff was never examined before allowing the said application for police help for substantiating his report which is a mandatory requirement of Order 5 21 Rule 97 CPC. It is also contended that according to the averments made in the application by the opposite parties the seal bailiff of the Court went to the suit property on 12-05-2023, and he was resisted by the family members of the petitioner. However the application for police help was filed on 18.11.2023 i.e. after 6 months. The Learned Trial Court while disposing off the said application for police help did not consider the fact that the said application is time barred in view of Article 129 of the Limitation Act. Article 129 of the Limitation Act lays down that an application for possession after removing resistance or obstruction to delivery of possession of immovable property decreed or sold in execution of a decree has to be filed within 30 days from the date of resistance/obstruction. Learned Advocate submits that the petitioner has purchased an undivided share in the suit property and Section 22 of the Hindu Succession Act does not provide a procedure as to how such an order of pre-emption is to be executed. It is further submitted that the Learned Trial Judge had failed to consider that automatic vesting of right title interest and possession of schedule property upon the plaintiff on deposit of Rs. 14,080/- is not the mandate of law as required under section 22 of the Hindu Succession Act Learned Advocate also submits that the order dated 12-06-2019 is also liable to be set aside. Learned Advocate submits that the order dated 12-06-2019 was not challenged by the petitioner in higher forum and it is well settled that even if an erroneous order is not 6 challenged before any higher forum but has been brought, to the notice of the Hon'ble Judge in the Revisional Court, the Revisional Court can take cognizance of such illegal order and set it aside. The following decisions are relied upon by Learned Advocate for the petitioner.
Ajit Kumar Ray VS Jnanendra Nath Dey and others.
Reported in AIR 1975 Cal-433.
Surya Dev Rai VS Ram Chandra Rai and others.
Reported in (2003) 6 SCC. P-675.
Arguments of the opposite party no-1.
9. Learned Advocate for the opposite party no-1 submits that it is now well-settled that Article 129 of the Limitation Act is not applicable in cases where the applicant's prayer is to give him the aid of police for executing the decree for possession which is the ultimate object. Such application for police help is not itself an application for neither possession nor it is an application under Order 21 Rule 97. In the instant case though the application filed by the opposite parties was captioned as the one under Order 21 Rule 97 of the Code from the averments it is clear that such application was filed for police help for executing the decree of possession for which the opposite party has put the decree into execution. It is also well settled that mentioning a 7 wrong section in an application cannot be considered fatal if the substance of the application is clear. Thus although the said application was captioned as an application under Order 21 Rule 97 of the Code, the said was actually filed for police aid for executing the decree for possession for which the execution was actually levied. Thus Article 129 of the Limitation Act is not applicable in the instant case. Order is binding upon the petitioner and he cannot urge such point in the Revisional Application.
10. It is submitted by the Learned Advocate that the Judgment Debtor cannot be aggrieved that his wife and daughter were not made parties. The wife and daughter of the Judgment Debtor never challenged the order impugned. Thus this point is not available to the petitioner.
11. Learned Advocate further submits that the intention of legislature is very clear that non-service of notice in execution proceedings under no circumstances can affect the jurisdiction of an execution Court. Thus the Executing Court was absolutely justified in passing the order impugned.
12. The following decisions were relied upon by Learned Advocate for the opposite party.
Panka Lal Bag VS Santosh Kumar Sikdar Reported in AIR-1984 Cal-232.
State of Kerala VS MK. Kenhitannan Nambiar Manjai 8 Manikath Naduvial (Dead) Reported in 1996 (1) SCC- 435 Mrs Ajit Kumar Ray VS Jnanendra Nath Dey and others.
Reported in AIR-1975 Cal-433.
13. Before proceeding to deal with the material in issue it is necessary to consider the provisions contained in Rule 208 of Civil Rules and Orders of Calcutta High Court, and the provision contained in Order 21 Rule 97 of the Code of Civil Procedure.
14. Rule 208 of Civil Rules and Orders of Calcutta High Court provides as follows:
(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 a 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 9 should not be recommended unless the Court is fully convinced of the existence of a grave emergency.
(2) The requisition to the Superintendent of Police should State in brief the need for such aid, the number and rank of men required, the nature of the process and the place where it is to be executed. It will be for the Superintendent of Police to decide how best and when he will be in a position to offer the help sought.
(a) Costs for police help shall be charged in executing decrees in cases where such help is considered necessary because of apprehensions of violence or obstruction from the judgment-debtor himself. The party concerned shall be ordered to deposit such costs for the service as the Superintendent of Police may require under the rules of the department.
(b) Costs for police aid shall not be levied in cases where police help is required because of conditions of a general character, such as the locality being in a disturbed State or a class of people, similarly situated, being likely to make a common cause with the judgment-debtor and resist execution.
(c) In cases where a levy of costs is ordered, such costs shall be added to the costs of execution.
Note: 1. It shall be the duty of the court to decide in each case under which category it falls, that is whether police aid should be given under clause
(a) above in which case the party has to deposit necessary costs or under clause (b) in which case no costs are to be charged.
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2. Police aid shall not be requisitioned or taken in effecting the arrest of judgement-debtors unless it is clear that no other means will possibly achieve the required result.
15. Order 21 Rule 97 of Code of Civil Procedure provides as follows:
97. Resistance or obstruction to possession of immovable property.
1) Where the holder of a decree for the possession of the 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 (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Upon plain reading of the provisions contained in Rule 208 of Civil Rules and Orders and those contained in Order 21 Rule 97 CPC although there is no specific provision of service of notice upon judgment Debtor or those who have created obstruction but the Court before which application for police help is made is required to come to a finding that police help is necessary and if possible give the judgment debtor or obstructer an opportunity of being heard.
16. In the case of, Ajit Kumar Ray (supra) this Hon'ble Court observed as follows:
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'4. With regard to the first question whether the judgment-debtor should be made a party or not it depends, in my view, upon the allegations made by the decree-holders on the question of resistance or obstruction as the case may be. Rule 97 of Order 21 of the Code of Civil Procedure says that where the decree-holder for possession of immovable property, as in the present case, is resisted or obstructed by any person in obtaining possession of the property he may make an application complaining about such resistance or obstruction. According to Sub-rule (2) on receipt of such application the court shall fix a date for investigating the matter and shall summon the party against whom the application is made, to appear and answer the same. Rule 97 speaks about resistance or obstruction made by any person. It does not specify the judgment-debtor alone to be the re-sister. The elementary principles of natural justice is that whenever any allegation is made against a particular person or persons it is the duty of the court to give an opportunity to that person or persons to be heard about the allegations made. There may be cases where the decree-holder makes some allegations against a third party without reference to the judgment-debtor. In that case, I think, it is not necessary for the court to call upon the judgment-debtor to answer or to show cause against the allegations made against the third party. The third party is the proper person to be impleaded in the proceedings so that he may get an opportunity to be heard. There may also be cases where the allegation is that the third party at the instance of the judgment-debtor or with his connivance made the obstruction. In that case not only the third party but also the judgment-debtor 12 should be made parties and be given information about the allegations and opportunity to place their cases. Therefore, in my view, as already indicated, it cannot be universally stated that in all cases of allegations of obstruction the judgment-debtor must be made a party.
5. In the present case, the decree-holders' allegation is that Mrs. Roy offered resistance and obstructions to the bailiff in the matter of execution of the writ of delivery of possession. In paragraph 6 of the application it has been further stated that the opposite party has been set up by the defendant judgment-
debtor to illegally and wrongfully deprive the decree-holders of enjoying the benefits of the decree. It has been also stated in paragraph 5 that at the instigation of the judgment-debtor Mrs. Roy, his wife, without any just cause offered obstruction and resistance. On the very face of the allegations there can be no doubt whatsoever that the judgment-debtor should have been given notice about the application of the decree-holders giving him an opportunity to submit proper reply. But here Mr. Roy Chowdhury does not represent the judgment-debtor. Mrs. Roy can have no grievance for non joinder of the judgment-debtor. She could have relied on her own case and statement made in the petition of objection this ground of non-joinder of judgment-debtor would have been a good defense from the side of the judgment-debtor himself. However, in the present facts and circumstances I do not think that the petitioner before me can have any grievance for the non joinder of the judgment-debtor. Of course, even in the absence of any representation from the judgment-debtor it was the duty of the learned Judge below to make the 13 judgment-debtor a party and a notice should have been served upon him for proper adjudication of the dispute. However, in view of my discussion above, I do not think that the petitioner can have any assistance from the non-joinder of the judgment-debtor in the Miscellaneous Case.'
17. In the case of Panka Lal Bag (supra) this Hon'ble Court observed as follows:
'7. On proper construction of these rules it is clear that the police help is an extraordinary mode or procedure to implement execution of the decree. This special procedure of police help would only be allowed when grounds as enumerated in Rule 208 of the Civil Rules and Orders or in the relevant original side rules exist. Under provisions of Article 129 of the Limitation Act, for possession of immovable property application would have to be made within 30 days of resistance. Such application cannot be equated with the application for police help in view of the fact that for police help there need not be any actual resistance and such a help can be prayed for and such a procedure can be availed of at any time even when breach of peace is apprehended or anticipated police help is an aid to execution, not the execution by itself and the provisions of Article 129 of the Limitation Act have no application for resorting to such a special legal procedure.'
18. Upon considering the provisions contained in Rule 208 of Civil Rules and Orders and that contained in Order 21 Rule 97 of the Code of Civil Procedure although there is no mandatory provision of service of notice upon 14 the judgment debtor or to those who have created obstruction but the Court must be satisfied that there exists situation where police help is necessary. It is always just and reasonable to issue notice upon the judgment debtor or upon those persons who created obstruction in the event the address and particulars of the obstructers can be traced out, but at least the judgment debtors should should be issued notice. Where the judgment debtor does not turn up in spite of service of notice necessary order for police help may be passed and communicated to the judgment debtor giving him opportunity to comply the decree within such period as the Court thinks fit and the order of police help should be kept in abeyance for that period. In some exceptional cases, where Execution case is pending for a long period, service of notice of application for police help may be dispensed with. But in such cases also order for police help should be kept in abeyance for a short period and the judgment debtor should be informed of such order granting him reasonable opportunity to comply the decree.
19. Right to dignity is a basic right of all citizens. Thus when police persons visit the property or house of any citizen, the dignity of the person concerned is shaken to some extent. Thus the order for police help should be passed after exercising abundant caution and the judgment debtor should ordinarily be heard before passing order of police help.
20. In exceptional situations upon considering bailiff report if the Court is satisfied that there exists situation for police help order for police help may 15 be passed without hearing judgment debtor but the said order should be kept in abeyance granting opportunity to Judgment Debtor comply the decree.
21. However when the Judgment Debtor was heard before passing order for police help it is not necessary to keep the Order of Police help in abeyance but in exceptional situations Court may permit the Judgment Debtor to comply the decree and keep the Order of Police help in abeyance for a short period.
22. In the case of State Government Houseless Harijon Employees' Association VS State of Karnataka reported in (2001) 1 SCC 610,the Hon'ble Supreme Court observed as follows:
'27. This Court has consistently held that the requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication.
28. In the case of Union of India V. Col. J.N. Sinha 1970 (2) SCC 458, this Court said: . "It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice." 16
29. The Constitution Bench in Olga Tellis V. Bombay Municipal Corporation 1985 (3) SCC 545 placed the onus to prove the exclusion of the rules of natural justice by way of exception and not as a general rule on the person who asserted it: (SCC p. 581, para 45) "The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it.
Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence."
30. Both these views were affirmed by the Constitution Bench in C.B. Gautam V. Union of India 1993 (1) SCC 78.
23. Upon considering different judicial decisions it is clear that it is just and reasonable to give the obstructer of decree and the judgment debtor an opportunity of being heard and record the exceptional reasons for ordering police help. Although it is not necessary to give details in execution report but the report should contain the particulars with regard to the persons who obstructed if the particulars can be obtained with specific mention in the report with regard to apprehension of breach of peace. As Courts have duty to see that decrees are complied with and decree holders are not deprived of fruits of 17 the decree the technicalities must be avoided in the interest of justice. Moreover the bailiff/process server whose duty is to execute the decree passed by Court cannot be compelled to discharge his function in an unsafe situation. Moreover when a decree is pending for execution for a long period, police order may be passed without hearing the judgment debtor if the Court upon considering the execution report deem fit and proper in such a case all that the executing Court is required to do is to keep the Order for police help in abeyance for such period as the Court thinks fit upon communicating such order to the Judgment debtors and giving the Judgment debtor an opportunity to comply the decree. In the event the Judgment Debtor refuses to comply the decree the police order help already passed may be carried out without further application.
24. With regard to the point of limitation as raised by the petitioner in an application for police help this Court upon considering judicial decision relied is of the view that as the Court has duty to see that its order is complied on the basis of execution report of the bailiff the Court can pass necessary orders upon putting the decree-holder to notice. Moreover the period of limitation as per Article 129 of the Limitation Act 1963 is between the Court and the decree holder and the judgment debtor cannot take such benefit of his own wrong. As Courts have power to condone delay with regard to application under Article 129 of the Limitation Act delay in such cases is not fatal. 18
25. Upon hearing the Learned Advocates and considering the facts of the case, this Court is of the view that as the Execution case is pending for a period of five years and the bailiff report mentions about apprehension of breach of peace and there is no denial in the revisional application of bailiff visiting suit property and resistance caused, the Learned Executing Court was justified in passing Order of Police help. However the said order ought to have been kept in abeyance for a short period granting opportunity to the Judgment Debtor to comply the decree.
26. Thus this revisional application stands disposed by granting liberty to the Judgment Debtor/petitioner to comply the Judgment and decree dated 27-05-2019 passed by the Learned Civil Judge (Junior Division ) at Haldia in T.S. 92/2007 and hand over vacant possession of the suit property to the Decree holder/opposite party within 6 weeks from date. The order dated 18/11/2023 passed in Title Execution Case No- 2 of 2019 arising out of Title Suit no. 92/2007 be kept in abeyance for six weeks. The Learned Trial Court shall fix a date after six weeks regarding compliance. Upon obtaining petition from the decree holder on the date fixed in the event such decree is found to be not complied Learned Court will direct the bailiff to visit the suit property to execute the decree dated 27-05-2019 passed in T.S. 12/2007. On the report of the Bailiff if the Learned Court finds that the Judgment Debtor has refused to comply the decree or made obstruction the order dated 18/11/2023 for police help will be carried out without any fresh application. 19
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury,J)