Calcutta High Court
Gopi Krishna Maji vs Judhistir Dey And Others on 19 January, 1995
Equivalent citations: AIR1995CAL263, (1995)1CALLT260(HC), 100CWN190, AIR 1995 CALCUTTA 263, (1996) 2 RENCR 653 (1996) 2 ICC 891, (1996) 2 ICC 891
ORDER
1. The present revisional application is directed against Order No. 17 dated 9-12-1994 passed by the learned 2nd Judge, City Civil Court at Calcutta in Title Execution, Case No. 55 of 1994. In the connected execution proceeding, an application for police help was filed under the caption of section 151 of the Code of Civil Procedure. The decree holder filed the said petitions stating, inter alia, therein he got a decree for recovery of possession of the suit premises. On 9-11-1994 a bailiff of the Court accompanied by the decree-holder went to the suit premises but the bailiff could not deliver possession due to the resistance given by the judgment debtor, his son Gopi Krishna Maji and the daughter-in-law Sm. Shikha Maji. The petitioner-decree-holder has asserted that he is entitled to get the decree executed and to recover possession of the suit premises through police help. The learned Judge in the Trial Court by making a reference to a decision reported in 92 C.W.N. 507 and another decision reported in All India Rent Control Journal, Vol. II, 1984 at page 212has proceeded on the footing that an Executing Court can grant police help to the decree holder under Section 151 of the Code of Civil Procedure.
2. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the opposite parties, has contended that in terms of Order 21, Rule 35(1) of the Code of Civil Procedure, possession is capable of being delivered by removing any person bound by the decree.
Mr. Mukherjee had laid special stress on the word and/or expression "by removing any person bound by the decree" and he had further submitted that the decree is straightway not only capable of being executed but the person found in possession, who is representing the judgment-debtor, can also be removed by an order of police help. In support of his submission, Mr. Mukherjee has referred to and relied upon the decision cited in the impugned order, namely, the case of Md. Salim v. Md. Assim and others, reported in 92 C.W.N. 507 and in tune with the ratio of law expounded in the cited decision, this Court has been attempted to be persuaded to follow the same by holding that an executing court can grant police help to the decree-holder under Section 151 of the Code of Civil Procedure on an application under Order 21, Rule 35 of the Code without taking recourse to the provisions of Order 21, Rule 97 thereof. The prosecution of remedy by Section 151, C.P.C. has been considered to be an aid to execution and not excution itself. A distinction has been sought to be made between the nature of an application under Section 151, C.P.C. and an application under Order 21, Rule 97 of the Code. Mr. Mukherjee has further referred to the other decision, namely, in the case of Gangaram v. Debi Singh, reported in All India Rent Control Journal, Vol. II, 1994 p. 212 and in the said judgment it has been held that a decree-holder seeking police help by an application under Section 151 of the Code is entitled to get the remedy. Mr. Mukherjee has further relied upon a Full Bench decision in the case of Smt. Usha Jain and other v. Manmohan Bajaj, and another and has contended that Order 21, Rule 97, C.P.C. is merely permissive and not mandatory and a decree-holder cannot be forced to resort to it against his will and may even apply for a fresh warrant under Order 21, Rule 35, C.P.C. No enquiry into the title and possession of third party at any rate is necessary either under Rule 35, Rule 36, Rule 95 or Rule 96 of Order 21 of the Code when the decree-holder applies for recovery of possession. The omission by the Executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. If such a party is dispossessed according to the said judgment, his remedy is under Order 21, Rule 100, C.P.C. for dispossession or to file an independent suit claiming his title therein. The Court has further opined in the said decision that it is likely to cause greater hardship to the decree-holder if every claim by a third party is to be investigated by the Executing Court.
3. Mr. S. P. Roy Chowdhury, learned Advocate appearing on behalf of the petitioner, has joined issue with the submissions of Mr. Mukherjee and to repel the said contention, Mr. Roy Chowdhury has drawn the attention of this Court to a single Bench judgment of this Court in the case of Gayanath Ghosh v. Amulya Chandra Sarkar and others. Mr. Roy Chowdhury drew the special attention of this Court to a germane observation made by Bachawat, J. In paragraph 14 of the said judgment, it has been held that relief by way of restoration of possession obtained by an application under Order 21, Rule 100 of the Code is a poor consolation for a person who is unlawfully disposessed. According to Mr. Roy Chowdhury, the Court should, therefore, proceed with great caution in granting police help. Mr. Roy Chowdhury has further submitted that whenever an order of police help is passed under whatever lable, a person not bound by the decree is entitled to be heard otherwise caution required to be adopted by the Court will become illusory. In the said judgment, it has been further held that when there is a bona fide claim by an occupant that he is not bound by the decree, the Court should decline to give such aid unless the same is negatived. If a claim is vitally affected by an order of police help, such a person is entitled to be heard on an application praying for such help. The Court may examine any person it thinks fit and, if necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. According to Mr. Roy Chowdhury, such prescriptive guidelines have been laid down in the said judgment so that the Court can be cautious before granting police help. Mr. Roy Chowdhury has also referred to the case of Gopal Chandra Sadhukhan v. Sk. Jamshed, reported in 68 C.W.N. 806. Mr. . Roy Chowdhury has reiterated from the aforesaid judgment that a party against whom an order for police help is sought is entitled to notice so that the Court can exercise its discretion to deal with the case for police help. Mr. Roy Chowdhury then referred to the case of Ajit Kumar Roy v. Jnanendra Nath Dey, and had drawn the attention of this Court from para. 5 of the said judgment by pointing out that the elementary principle of natural justice is that whenever any application is made against a particular person or persons, it is the duty of the Court to give an opportunity to that person to be heard out. The third party may be impleaded in the proceeding so that he may be given an opportunity to be heard. If there are allegations that the third party was in connivance with the judgment-debtor, then the thrid party as well as the judgment-debtor should be given information about the allegations. The learned Judge in the decision has also dwelt on construction of Rule 208 of Civil Rules and Orders and opined that if any decree holder prays for police help in execution of a decree, he shall state in his application the full reasons thereof supported if required by an affidavit. The Court will be further required to form its opinion that unless police help is given, the execution will not be effected without serious danger to public peace and the Court must record the reasons for allowing such police help. It is only in a grave situation that this extreme step should be taken by the Court. The provisions contained in Rule 208 can be used only in exceptional cases and not too readily when the Court will be of opinion that unless police help is given, there will be danger to the public peace on account of execution of the decree. Mr. Roy Chowdhury in this context has referred to Section 122, C.P.C. and, according to Mr. Roy Chowdhury, in terms of the provisions of the Code, the High Courts may from time to make rules relating to their own procedure and procedure of Civil Courts subject to the superintendence of the High Courts. Mr. Roy Chowdhury has placed Civil Rules and Orders of the High Court at Calcutta and has relied on the prefix of the first heading contained therein where it has been written that there are rules relating to the Civil Procedure Code. According to Mr. Roy Chowdhury, Rule 208 of the Civil Rules and Orders in view of the provisions of Section 122, C.P.C. forms part of the rules relating to Civil Procedure Code. Mr. Roy Chowdhury has also made the Court read Rule 208 of Civil Rules and Orders which reads thus:
"A decree-holder praying for police help in execution shall state in his application the full reasons thereof supported if required by an affidavit....."
4. In terms of Note 1 superadding Rule 208, Mr. Roy Chowdhury contends that it is the bounden duty of the Court to decide in each case in which category if falls, namely, categories as contemplated under sub-Rules (2)(a) (b) or (c) under Rule 208. Mr. Roy Chowdhury then refers to the case of Sm. Usha Ghosh v. Rabindranath Das and others, reported 1991 Vol. II, C.H.N. 502 and he has drawn the attention of this Court to the submissions of Mr. Mukherjee, learned Advocate for the opposite party appearing in that case where his argument was that the process should not be issued ex parte without giving an opportunity of being heard to the judgment-debtor. If any question arises for taking possession in police help, in that event, the mandatory provision of Order 21, Rule 97 has to be adhered to. Mr. Mukherjee has tried to distinguish his argument in the said decision from the present case on the footing that it is not a case covered under Order 21, Rule 97 but it is for effective implementation of the operative portion of Order 21, Rule 35, C.P.C. In the said judgment, it has been held that in the case of police help by an execution court, the Court has to give an opportunity to the judgment debtor before granting any police help. Mr. Roy Chowdhury has pointed out that if such is the view of the Division Bench of our Court, then his present case stands on a better footing as it is the case of a third party who is setting up an independent claim and not through judgment debtor. In the said judgment, it has been held that police help is required to be rendered by the executing court in accordance with the provisions of the Civil Procedure Code.
Mr. Roy Chowdhury has tried to contend with force by reiteration of his submissions that even the principle of natural justice demands that a party in possession while setting up his case as a third party should not be allowed to be disturbed without affording him a reasonable opportunity of hearing. According to Mr. Roy Chowdhury, the same is not only contrary to the relevant provisions of the Civil Procedure Code but also the same militates against the principles of natural justice. Mr. Roy Chowdhury has leaned heavily with regard to a salient observation made by Bachawat, J. that when a claiment is vitally affected by an order for police help and is threatened with dispossession, then it is not only necessary to hear him but, if further necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. According to Mr. Roy Chowdhury, unless the said procedure is resorted to, the Court shall fail to proceed with great caution and circumspection in granting police help.
5. This Court has carefully gone through the order impugned but the same does not appear to be resonant with the reasons by reflection of an objective opinion that unless police help is given, the execution will not be effected without serious danger to the public peace but there is no recording of reasons for allowing police help and for request to the police authority for extending help at the time of execution of the decree. The impugned order also does not project a picture of grave situation that extreme step should be taken by the Court. There is no occasion for this Court to differ with the proposition of law as expounded in 92 C. W.N. 507 by this Court as the executing court can grant police help to the decree holder under Section 151, C.P.C. on an application under Order 21, Rule 35 of the Code but not (sic) a party who has set up a third party right. The operative portion of Order 21, Rule 35, C.P.C., as read, contemplates removal of a person bound by the decree but not to a person who has put up an independent right as a third party and without recording grave reasons for serious threat to peace and tranquillity at the site of the disputed property if decree is attempted to be executed excepting a facile remark by the bailiff. There appears to be no material in support of the decree-holder's plea that he can get the luxury of taking recourse to extreme step of police help without affording an opportunity of hearing to the person actually in possession but no, claiming though judgment-debtor. Such extreme step in an undue haste will not fit in with the concept of caution and circumspection which are required to be resorted to before allowing an application for police help to dispossess any person in occupation by way of his purported bid to assert independent right. The order does not also appear to be a speaking order in tune with modalities which have been repeatedly prescribed by this Court where reasons are required to be recorded for passing an order for such extreme step. The impugned order apart from any other con-trovertial aspects involved in it does not appear to have conformed to the quidellnes of recording reasons before granting police help and, as such, the same also smacks of irregularity in exercise of its jurisdiction for the non-speaking nature of the said order. Accordingly, the impugned order is set aside on contest after hearing the respective parties in great details and after giving my anxious consideration to the controversies involved in this proceeding. The revision application thus succeeds and stands allowed. There shall, however, be no order as to costs.
6. Application allowed.