Calcutta High Court (Appellete Side)
Nemai Chandra Halder vs State Of West Bengal & Ors on 28 April, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
28.04.2014.
d.p.
W.P. 9648 (W) of 2014
Nemai Chandra Halder
Versus
State of West Bengal & Ors.
Mr. Shiba Prasad Bhattacharjee.
...For the Petitioner.
Ms. Pratima Mishra.
...For the Private
Respondents.
Mr. Moloy Roy.
...For the State.
(Assigned) This writ petition has been placed before us for deciding the following question as a Learned Single Judge of this Court while dealing with the instant writ petition could not agree with the decision of another Learned Single Judge of this Court passed in W.P. 11628(W) of 2013 in the case of Srikanta Roy -vs- State of West Bengal & Ors. reported in 2012 (2) CLJ (Cal) 486:-
"Is the writ remedy, in the given facts and circumstances, available to an aggrieved decree holder or his remedy lies elsewhere?"
Let us first of all give the short background of the writ petition filed by Srikanta Roy against the State of West Bengal & Ors. There, the writ petition was filed by the decree-holder of the property in question alleging that he was dispossessed from the decretal property after he 2 received possession in execution of a decree for recovery of possession by police help.
It was alleged therein that, the judgement- debtors dispossessed the decree holder from the said property on the very same day, when the judgement-debtors were evicted from the decretal property and the decree holder was put into possession therein through execution of the decree.
Under such circumstances, the decree- holder lodged a complaint with the local police station which was registered as First Information Report. A charge-sheet was submitted before the Criminal Court where the criminal proceeding was pending. Subsequently, the said decree holder filed a writ petition for issuance of a writ of mandamus so that the possession of the decretal property is restored to him by police help.
An objection was raised regarding maintainability of such a writ petition before a Learned Single Judge of this Court who ultimately held that such a writ petition is maintainable as in His Lordship's view, the police ought to have removed the trespassers instantly in such type of cases and they ought to have taken such other steps or further steps on the basis of First Information Report without waiting for any order or any interference by any Court. His Lordship further held that right to enjoy the property is protected under Article 300A of the Constitution of India and nobody is authorized or entitled to dispossess the lawful owner from his property by taking law in his own hand, thereby creating a 3 social chaos and causing law and order problem. Accordingly, the said writ petition was disposed of.
When an identical matter being W.P. No. 11628(W) of 2013 (Irfan Nizami -vs- State of West Bengal & Ors.) was under consideration before another Learned Single Judge of this Court, His Lordship could not agree with the decision passed by the other Learned Single Judge of this Court in the case of Srikanta Roy (Supra).
Accordingly, the following question was framed by His Lordship and the Hon'ble Chief Justice was requested to constitute an appropriate Bench to decide the said question:-
"Is the writ remedy, in the given facts and circumstances, available to an aggrieved decree holder or his remedy lies elsewhere?"
The said writ proceeding was ultimately placed before the Hon'ble Division Bench presided over by the Hon'ble Chief Justice but since none appeared on behalf of the said writ petition on 6th June, 2013 when the said writ petition was taken up for hearing by the said Division Bench, the said writ petition was dismissed for default. Consequently, the reference, which was made, could not be answered. Subsequently, when the present writ petition came up for consideration before the Learned Single Judge who earlier requested the Hon'ble Chief Justice for a reference to a larger Bench for answering the said question, again made identical request to the Hon'ble Chief Justice.
4Under such circumstances, the present writ petition has been placed before us for answering the said question.
Before proceeding further, we feel it necessary to mention here that the fact of the case which is involved in this writ petition, is not exactly identical with the facts of the case which was before the other Learned Single Judge of this Court in the case of Srikanta Roy -vs-State of West Bengal & Ors. (Supra).
We have already indicated above that in the case of Srikanta Roy (Supra), the decree holder after recovery of possession of the decretal property from the judgement debtor by police help through the process of execution was again dispossessed by the judgement debtor for which a complaint was lodged with the local police station which was registered as First Information Report and police submitted a charge-sheet in the criminal proceeding pending before the criminal court. Such a decree holder subsequently filed a writ petition complaining his dispossession and praying for issuance of a writ of mandamus so that possession can be restored to him by police help.
But in the present case, the writ petitioner filed a suit for declaration of his title in respect of the suit property and for permanent injunction against the judgement-debtor, viz., the private respondents herein. The said suit which was registered as Title Suit No. 177 of 2004, was decreed on contest on 31st January, 2012. By the said decree, the plaintiff's (decree-holder/writ 5 petitioner's) right, title and interest over 'Ka' schedule property was declared. The defendants (judgement-debtor/private respondents) were restrained by permanent injunction from constructing the passage parallel to the AAL and thereby changing the nature and character of the suit property.
Thus, this is a case where neither any relief for recovery of possession was prayed for by the decree-holder/writ petitioner, nor any decree for recovery of possession was passed in the said suit.
The writ petitioner/decree-holder subsequently filed an execution case under Order 21 Rule 35 of the Code of Civil Procedure complaining his dispossession from the suit property. The Learned executing court issued a writ for delivery of possession of the suit premises to the decree holder vide order dated 26th June, 2013. By the said order, the Bailiff was directed to execute the said writ of possession and submitted a report before the executing court on 25th November, 2013. The said writ of possession was executed by the Bailiff on 25th September, 2013 and possession was given to the decree holder by the bailiff. Accordingly, report was submitted before the Learned Executing Court.
The writ petitioner/decree-holder now complains that subsequently he has been dispossessed from the suit property by the said judgement debtor and as such, he lodged a complaint to the local police station seeking police help so that his possession in the said suit property is restored by police help.
6Since the police authority has not given necessary assistance to the petitioner, the writ petitioner has filed the instant writ petition seeking issuance of direction upon the police authority for rendering necessary police help to the petitioner and for restoring his possession in the suit property by police help. In connection with the said writ petition, the above question was formulated by the Learned Single Judge of this Court who could not agree with the view expressed by the other Learned Single Judge of this Court in the case of Srikanta Roy (supra).
Let us first of all consider the relevant provisions of the Civil Procedure Code touching the question which has been referred to us for our decision.
A decree for recovery of possession can be executed by the mode as prescribed under Order 21 Rule 35 of the Code of Civil Procedure which is set out hereunder:-
"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, by 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 7 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 customary mode, at some 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."
Since we have already mentioned above that this is not a case where a decree for recovery of possession was passed by the Learned Civil Court, such a decree cannot be executed through the mode as prescribed under Order 21 Rule 35 of the Code of Civil Procedure.
We are still at a loss to understand as to how writ of possession was issued by the Learned Executing Court under order 21 Rule 35 of the Civil Procedure Code, for delivering possession of the decretal property to the decree-holder in the present case, when admittedly no decree for recovery of possession was passed in the suit in favour of the writ petitioner/(Decree-holder).
The writ petitioner herein all through out proceeded before the Civil Court by contending 8 inter alia, that he was in possession of the suit property and as such, he sought for decree for permanent injunction for protecting his possession. His dispossession from the suit property was never complained of in the civil suit and as such, he did not pray for recovery of possession.
Since the writ petitioner/decree-holder has got a decree for declaration of his right, title and interest in respect of the suit property and permanent injunction, such a decree for permanent injunction can only be enforced through the process of execution as provided under Order 21 Rule 32 of the Code of Civil Procedure, in case the judgment debtor violates or disobeys the order of injunction.
The provision contained in Order 21 Rule 32 of the Code of Civil Procedure is set out hereunder :-
"Decree for specific performance for restitution of conjugal rights, or for an injunction: -
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction) by his detention in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the 9 detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-
rule (2) has remained in force for (six months) if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, 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, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."
Thus, when a comprehensive provision for redressal of the grievance of the decree-holder is prescribed in the code itself, we are of the view that in case the decree for permanent injunction is violated and/or threatened to be violated, the remedy of the decree holder lies before the Executing Court for seeking relief by way of enforcement of the decree for permanent injunction by following the mode as prescribed under Order 21 Rule 32 of the Code of Civil Procedure.
The police authority has not been vested with any jurisdiction to adjudicate any dispute concerning the civil rights of the parties. Police help can only be granted in aid of execution of the 10 decree by the Civil Court. Thus, unless the Civil Court directs, the police authority, on its own, cannot grant police help either for restoring the possession of the petitioner or for enforcing the decree for permanent injunction.
However, if there is any apprehension of breach of peace and/or public peace and/or tranquility is under threat, the police authority can take necessary steps for maintenance of peace and tranquility in the locality so much and so forth and not anything beyond that.
Be it mentioned here, that the judgment debtor's right to object to the executability of the decree is recognized under Section 47 of the Code of Civil Procedure. Then again any question relating to discharge, adjustment and/or satisfaction of the decree can also be considered by the executing court under Section 47 of CPC.
If such an objection is raised in an execution proceeding, such objection, in our view, cannot be resolved by the police authority as the police authority has not been vested with such jurisdiction to resolve such dispute. As such, police authority on its own, cannot grant any help to judgment debtor for restoration of his possession in case the decree-holder is dispossessed after possession is recovered from the judgment debtor in execution of the decree through court followed by recording of satisfaction of the execution of the decree by the Executing Court in the execution proceeding.
The only remedy in such cases which is left open to the decree holder for recovery of 11 possession of the decretal property is to approach the Executing Court, for recovery of possession of the decretal property through the process of execution under Order 21 Rule 35 of the Code of Civil Procedure and in case , after recovery of possession followed by recording of satisfaction of the decree by the executing Court the decree holder is somehow or other dispossessed by the judgment debtor, the only remedy which is available to such decree holder is to file a suit under section 6 of the Specific Relief Act for recovery of his possession.
Thus, we cannot agree with the view as expressed by the Learned Single Judge of this Court in the case of Srikanta Roy -vs- State of West Bengal & Ors., reported in 2012 (4) WBLR Calcutta 849.
In our considered view, the relief which the writ petitioner has claimed in the present writ petition cannot be granted. The writ petition, in our view is not maintainable as his remedy lies elsewhere as mentioned above.
The writ petition thus, stands rejected.
The question which was referred to us is thus, answered.
Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.)