Calcutta High Court (Appellete Side)
Ranjit Barman vs Smt. Arati Barat And Others on 6 February, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 4101 of 2018
Ranjit Barman
Vs.
Smt. Arati Barat and others
For the petitioner : Mr. Hiranmoy Bhattacharyya,
Mr. Sounak Bhattacharya
For the opposite parties : Mr. Dipankar Dandapath
Hearing concluded on : 29.01.2019
Judgment on : 06.02.2019
Sabyasachi Bhattacharyya, J.:‐
2
1.The judgment debtor in respect of an eviction decree has preferred the instant revisional application. A contested eviction decree was passed against the petitioner in favour of the decree‐holders/opposite parties on April 30, 2016. The judgment debtor/petitioner preferred Title Appeal No. 27 of 2016 along with a prayer of condonation of delay in preferring the same.
2. In the meantime, the decree‐holders/opposite parties levied execution, giving rise to Title Execution Case No. 6 of 2016. In such execution case, the opposite parties filed an application for police help under Rule 208 of the Civil Rules and Orders framed by this court, which was registered as Judicial Miscellaneous Case No. 18 of 2018. The said miscellaneous case was filed on May 5, 2018. Vide Order No. 13 dated May 5, 2018, the executing court fixed the miscellaneous case on July 27, 2018 for service, return and appearance.
3. Thereafter, the opposite parties filed an application for exemption from filing requisites in terms of Order No. 13 dated May 5, 2018, coupled with a put‐up petition. The executing court, vide Order No. 14 dated June 6, 2018 allowed the said application, exempting the opposite parties from serving any notice upon the petitioner and fixing July 27, 2018 for hearing of the miscellaneous case.
4. On July 27, 2018, vide Order No. 15, the executing court fixed October 12, 2018 as the next date for hearing of the miscellaneous case. Order No. 15 dated July 27, 2018 was passed in presence of both sides.
3
5. Subsequently, on a put‐up petition being filed again by the decree‐holders, the executing court shifted back the date of hearing to August 24, 2018, vide Order No. 16 dated August 4, 2018. Thereafter, vide Order No. 17 dated August 24, 2018, the matter was adjourned to August 29, 2018.
6. Vide Order No. 18 dated August 29, 2018, the prayer for police help was allowed and consequential orders passed.
7. Subsequent orders were consequential thereto.
8. The petitioner has challenged Order No. 14 dated June 6, 2018 onwards, whereby notice on the judgment debtor/petitioner was exempted and the miscellaneous case itself was taken up for hearing, on certain occasions behind the back of the petitioner.
9. Learned counsel for the judgment debtor/petitioner argues that the executing court acted without jurisdiction in disposing of the application under Rule 208 filed by the opposite parties, without directing any copy thereof to be served on the judgment debtor. It is submitted that the provisions of Order XXI Rule 22 of the Code of Civil Procedure, which were invoked by the executing court in directing exemption of notice, were not applicable to the miscellaneous case under Rule 208, but only to an execution case. It is submitted further that law is now well‐settled that an application in the nature of police help under Rule 208 of the Civil Rules and Orders had to be adjudicated, by reading into it the provisions of Order XXI Rules 97 to 106 of the Code of Civil 4 Procedure and that service of notice on the judgment debtor and/or a third‐party resistor, as the case may be, was mandatory.
10. In support of such proposition, learned counsel cites an unreported judgment delivered by a co‐ordinate bench of this court on September 6, 2018 in C.O. No. 199 of 2018 [Reba Mondal vs. Smt. Sandhya Paul & anr.], wherein the learned Single Judge affirmed an order dismissing a miscellaneous case under Order XXI Rule 97, read with Section 151 of the Code of Civil Procedure and under Rule 208 of the Civil Rules and Orders, on the ground that the decree‐holder had failed to prove that the bailiff was resisted, especially since the decree‐holder admitted that she did not have any allegation against the objector.
11. Learned counsel for the petitioner next cites a judgment reported at AIR 1965 Cal 51 [Gopal Chandra Sadhukhan vs. Sheikh Jamsed and another], wherein another co‐ordinate bench held that notice was mandatory for grant of police help.
12. The next judgment cited by the petitioner, of another learned Single Judge of this court, reported at 2003 (2) CHN (Cal) 340 [Dwarikanath Chowdhury vs. Sadananda Chowdhury] held that an application for police help could not attract only the provisions of Rule 208 of the Civil Rules and Orders but also involved a consideration under Order XXI Rules 97 to 106 of the Code of Civil Procedure and that a notice on the judgment resistor, including the judgment debtor, was mandatory in law.
5
13. Learned counsel for the petitioner further submits that the executing court virtually assigned no reason for grant of police help in Order No. 18 dated August 29, 2018.
14. Moreover, it is submitted by placing reliance on the certified copy of the order‐sheet that the executing court directed no notice of the shifting back of the date of hearing of the miscellaneous case to the judgment debtor and the entire process was done in a clandestine manner behind the back of the judgment debtor/petitioner.
15. Learned counsel for the decree‐holders/opposite parties submits that the judgment debtor had appeared before the executing court on July 27, 2018 when Order No. 15 was passed, fixing the next date for hearing of the miscellaneous case on October 12, 2018. As such, it is argued, it was the duty of the judgment debtor to keep track of the matter thereafter, including the shifting back of dates. However, no document of service of the put‐up petition on the judgment debtor was produced before this court.
16. It is further submitted that since Order XXI Rule 22 of the Code governs only the main execution case, no separate notice was required to be served under the Code in respect of interlocutory applications in connection with such execution case, including the police help application under Rule 208.
17. As such, it is argued that the impugned orders were passed in accordance with law and ought not to be interfered with.
6
18. In this context, Rule 208 of the Civil Rules and Orders, framed by this court, is required to be gone into. The said rule is set out below:
"Civil Rules and Orders:‐ 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 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 the 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 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 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 7 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."
19. Order XXI Rule 22 and Order XXI Rules 97 to 106 of the Code of Civil Procedure are also relevant in the present context. As such, those are also set out below:
"Code of Civil Procedure:‐ Order XXI:
Rule 22: Notice to show cause against execution in certain cases. ‐ (1) Where an application for execution is made -
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or where an application is
made for execution of a decree filed under the provisions of section 44‐A, or
(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him :
Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the 8 application being made against the legal representative of the judgment‐debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.
(2) Nothing in the foregoing sub‐rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
.... .... .... ....
Rule 97. Resistance or obstruction to possession of immovable property. - (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 any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where an application is made under sub‐rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Rule 98. Orders after adjudication. - (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub‐rule (2),‐
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it my deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment‐debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made 9 during the pendency of the suit or execution proceeding, it shall direct that the applicant be 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 or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
Rule 99. Dispossession by decree‐holder or purchaser. - (1) Where any person other than the judgment‐debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rule 100. Order to be passed upon application complaining of dispossession. - Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination, ‐
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit. Rule 101. Question to be determined. - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 10 Rule 102. Rules not applicable to transferee pendente lite. - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immoveable property by a person to whom the judgement‐debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation. - In this rule, "transfer" includes a transfer by operation of law. Rule 103. Orders to be treated as decrees. - Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Rule 104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.
- Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property. Rule 105. Hearing of application. - (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Explanation. - An application referred to in sub‐rule (1) includes a claim or objection made under Rule 58.
11Rule 106. Setting aside orders passed ex parte, etc. - (1) The applicant, against whom an order is made under sub‐rule (2) or Rule 105 or the opposite party against whom an order is passed ex parte under sub‐rule (3) of that rule or under sub‐rule (1) of the Rule 23 may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non‐appearances when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint the day for the further hearing of the application.
(2) No order shall be made on an application under sub‐rule (1) unless notice of the application has been served on the party.
(3) An application under sub‐rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order."
20. A consideration of Rule 22 of Order XXI shows that when an application for execution is made more than two years after the date of decree, the executing court shall issue a notice to the person against whom execution is applied for, requiring him to show‐cause why the decree should not be executed against him. However, Sub‐Rule (2) of Rule 22 provides that nothing in Sub‐rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
12
21. Hence, on a plain reading, Sub‐rule (2) dilutes, to some extent, the rigour of Sub‐rule (1).
22. Thus, even in the case of an execution case filed after two years from the date of decree, there can be certain factors which render the service of such notice directory, upon the court recording the reasons as to the notice causing unreasonable delay or defeating the ends of justice.
23. It would be absurd to import the stipulation as to service of notice applicable to the parent execution case to every interlocutory proceeding filed therein, thereby making the already cumbersome modalities of execution further difficult.
24. As such, the order dated June 6, 2018 was justified in so far as the court exempted the decree‐holders from sending any separate notice upon the judgment debtor afresh. It is further noted that on the subsequent date, that is, July 27, 2018, the judgment debtor was represented along with the decree‐holders. Hence, at least up to that date, there was no reason why the judgment debtor would be unaware of the exemption of service of notice on him. Despite such knowledge, no challenge was taken out to the order dated June 6, 2018, exempting such service, by the judgment debtor till filing the present revisional application in December, 2018.
25. Even the certified copy of the impugned orders, including the Order dated June 6, 2018, was applied for by the judgment debtor only on November 19, 2018, that is, more than five months after the said order of exemption of notice.
13
26. Although thereafter the date of hearing of the miscellaneous case was shifted back to August 24, 2018 on a put‐up petition filed by the decree‐holders, no specific averment has been made by the petitioner in the present application under Article 227 of the Constitution of India as to the put‐up petition not being served on the petitioner. In the absence of such an averment, it remains doubtful as to whether the petitioner had knowledge, at least through his advocate in the court below, regarding such put‐up petition being filed. If the general practice of the courts below is taken into consideration, put‐up petitions are permitted to be moved only upon notice to the other side. Since the petitioner has not even alleged as violation of such practice, it is difficult to accept the argument that the judgment debtor was entirely innocent about the proceedings after July 27, 2018, despite the date having been shifted back.
27. Considering the judgments cited by the petitioner, the unreported decision rendered in Reba Mondal (supra) was passed in a different context than the present one. In the said case, the learned Single Judge observed that there was no evidence on record to show that the court bailiff tried to execute the decree but failed due to resistance and the resistance was of such magnitude that the decree, if sought to be executed, would cause danger to public peace. On such factual premise, this court did not interfere with the refusal by the executing court to grant police help.
28. In the present case, however, there were specific findings in Order No. 18 dated August 29, 2018 as to the bailiff having failed to deliver possession and about apprehension of serious breach of peace. Hence, the said decision is distinguishable from the instant case. 14
29. The judgment of Gopal Chandra Sadhukhan (supra) was rendered in the context of an application being filed by the judgment‐resistor under Order XXI Rule 99 of the Code of Civil Procedure in the context of such challenge, it was held by the learned Single Judge that such an application ought to have been treated as a petition of objection to the police help application filed by the decree‐holders. In such a factual matrix, this court held that the judgment resistor (sub‐tenant) therein had a right of hearing on the police help application.
30. However, in the said judgment, a resistance was specifically offered, that too by a person claiming independent right, under Order XXI Rule 99 of the Code of Civil Procedure. In the present case, on the other hand, the judgment debtor himself is complaining against a police help application being allowed without notice. In fact, the allegation as to non‐ service of notice is a misnomer in the present case since the judgment debtor all along had notice of the execution case as well as the miscellaneous case and it was only a copy of the police help application which was not served on the judgment debtor. Nothing prevented the judgment debtor from obtaining a certified copy of the said application from the records of the execution case. Hence, feigning ignorance on the contents of the police help application would be somewhat inappropriate on the part of the judgment debtor in the present case.
31. A thorough reading of Gopal Chandra Sadhukan (supra) would rather show that the previous Sections 229 and 269 of the Code of Civil Procedure, 1859 and Sections 331 and 335 of the Code of Civil Procedure of 1877 were contemplated therein when resistance or 15 obstruction was offered to the execution of the decree by a person other than the defendant, claiming to be bona fide in possession of the suit property. As such the said provisions had no application to a judgment debtor at all.
32. It is only by introduction of Rules 97 to 106 or Order XXI of the Code of Civil Procedure, 1908 that a distinction was made between the judgment debtor and third party‐resistors. Order XXI Rules 97 to 106 cannot be read in isolation with Rule 35 of Order XXI, the latter being the primary provisions for delivery of possession against a judgment debtor. The said rule is as follows:
"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, by removing any person bound by the decree 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 customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building on 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 law or bolt or break open any door or do any other act necessary for putting the decree‐holder in possession." 16
33. Any person bound by the decree (meaning thereby the judgment debtor or her/his legal representatives) would be subject to delivery of possession by removal from the decretal property. No specific provision of prior notice is stipulated in Rule 35.
34. Rule 97, on the other hand, envisages a specific resistance or restriction by any person in obtaining possession of the property. To oust such a person, a hearing under Rule 101 of Order XXI is made a pre‐requisite by Rule 98.
35. Rule 99 envisages resistance / dispossession by persons other than the judgment debtor. Rule 100 mandates a determination of the questions referred to in Rule 101 prior to making an order under Rule 99.
36. It is seen that Rule 101 only lays down the ambit of questions which have to be adjudicated in such proceedings. However, Rule 101 ipso facto does not require a notice to be served on the judgment resistor, unless a specific resistance is put up under, either Rule 97 or 99 of Order XXI.
37. Reading Rules 35, 97 and 99 of Order XXI together, it is evident that, despite there being certain intervening portions, the three operate in separate fields.
38. Rule 99 is obviously the odd man out in the sense that it can be invoked only in case of résistance by, or dispossession of, strangers to the decree and does not apply at all to judgment debtor.
39. On the other hand, there might be, arguably, certain common areas between the Rule 35 and Rule 97. In a clear cut case, like the present one, where there is no doubt or contrary 17 claim to the judgment resistor being the judgment debtor himself, Rule 35 would apply and the person can be removed even if he refuses to vacate the property, as he is bound by the decree.
40. The present case is not one where there is a specific resistance or restriction by the judgment debtor on some specific ground. There is no objection on the part of the judgment debtor either under Section 38 or Section 47 of the Code of Civil Procedure or under any other provision of law setting up either the inexecutability of the decree or an independent right beyond the scope of decree (the latter, in any event, being not available to a judgment debtor barring exceptional cases). Hence, there cannot arise any question of a judgment debtor claiming the protection of Rule 97 to complain that no prior notice was issued on him as regards the police help application.
41. In the present case, no question and/or dispute was raised at all within the contemplation of Order XXI Rule 101 of the Code. Hence, the question of applicability of Rule 98 and a prior determination of such "questions", does not arise at all. Therefore, Rule 35 would be the operative section and not Rule 97 of Order XXI of the Code.
42. This apart, even if Rule 97 applies in a limited way to the judgment debtor herself/himself, the scope of adjudication for the judgment debtor would only be limited to the question as to whether the judgment debtor is bound by the decree. In the case at hand, no question whatsoever has been raised by the judgment debtor/petitioner as regards the petitioner not being bound by the decree or as to the executing court having no jurisdiction or that the decree being inexecutable. In the absence of such questions 18 being raised by the petitioner, the ratio of Dwarikanath Chowdhury (supra) is not applicable to the present case.
43. With utmost respect to the learned Single Judge concerned, the ratio of Dwarikanath Chowdhury (supra) has to be read down to apply only to cases where the judgment debtor raised some question as to inexecutability of the decree, or the judgment debtor being not bound by the decree, etc. in the execution case.
44. In the present case, the judgment debtor was well aware of the order exempting separate notice of the application under Rule 208 of the Civil Rules and Orders upon him. The judgment debtor was also well aware of the execution proceedings and the police help application being carried on by the decree‐holders.
45. There is not a single allegation raised, even in the present revisional application, as to non‐service of the copy of the put‐up petition on the judgment debtor.
46. The judgment debtor did not raise any question justifying the invocation of Rule 101 of Order XXI, and consequentially any requirement of service of prior copy of the police help application on the judgment debtor.
47. Order No. 18 dated August 29, 2018 specifically records that the bailiff went to the suit property for delivery of khas possession but failed to do so. It was further recorded that the bailiff apprehended serious breach of peace due to heavy resistance of the judgment debtor. Only in such context was the executing court granted police help. 19
48. It is also relevant to note that the term "resistance" can be of multi‐dimensional connotation. The resistance for the purpose of Order XXI Rule 35 only envisages physical resistance, which can be removed without any prior notice for hearing to the judgment debtor. However, the resistance as contemplated in Rule 99 and the portion of Rule 97 which operates beyond the purview of Rule 35, has to be a legal resistance set up specifically by the judgment debtor or an outsider, as the case may be, either as to the jurisdiction of the executing court or the inexecutability of the decree and/or any independent right set up by the outsider.
49. Neither of such criteria, attracting Order XXI Rules 97 to 106 of the Code, being present in the present lis, the executing court was well within its jurisdiction to pass the orders impugned herein.
50. It is further taken note of from the submission of the parties that in the meantime delivery of possession of the suit premises has already been handed over by the bailiff, with police help, to the decree‐holders/opposite parties, in due process of law. It would thus be gross injustice if the clock is set back to the position prior to such dispossession, despite the decree‐holders having a valid eviction decree and having obtained possession in due process of law. Even the appellate court, where the judgment debtor has apparently preferred an appeal, did not grant any stay of the eviction decree, at least as far as the present pleadings show.
51. In such circumstances, the executing court was justified in passing the impugned orders and the same does not call for any interference under Article 227 of the Constitution of 20 India. Accordingly, C.O. No. 4101 of 2018 is dismissed on contest, thereby affirming the orders impugned therein.
52. There will be no order as to costs.
53. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )