Calcutta High Court (Appellete Side)
Shukamal Kanti Dey vs Sabita Chowdhury & Ors on 1 April, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 01.04.19
Srimanta List - S/L Sl. No. 09 Ct. No. 25 C.O. 947 of 2019 (Assigned) Shukamal Kanti Dey
-Vs.-
Sabita Chowdhury & Ors.
Mr. Siva Prosad Ghose, Adv., Mr. Chandra Bhanu Sinha, Adv., Mr. Rohit Kumar Shaw, Adv.
...for the petitioner/defendant/Judgment debtor. Mr. Arijit Sarkar, Adv., Ms. Priyarthi Roy, Adv.
...for the opposite parties.
In the instant revision under Article 227 of the Constitution of India, an order dated 4th August, 2018 passed in Ejectment Execution Case No. 18 of 2013 has been assailed by the Judgment debtor of the said execution case.
For proper appreciation of the matter before this Court, the following facts are required to be stated:-
The decree-holder as plaintiff filed a suit for eviction against the Judgment debtor/defendant. Suit was decreed in favour of the plaintiff/decree-holder. The said decree was affirmed upto this Court in second appeal. Subsequently, the decree-holder filed an execution case being Ejectment Execution Case No. 18 of 2013. The learned Executing Court issued writ of possession for delivery of possession of the decreetal property by the Judgment debtor. The Court Bailiff went to execute the writ of possession on 10th March, 2016. However, the said writ could not be executed due to the resistance by the Judgment debtor and his men and agents. The Court Bailiff submitted a report to this effect wherein one Bacchu Roy put his signature as a witness.2
Failure on the part of the Court Bailiff to execute the writ of possession prompted the decree-holder to file an application under Rule 208 of the Civil Rules and Orders for police help in execution of the decree.
Parties led evidence in course of hearing of the aforesaid application under Rule 208 of the Civil Rules and Orders. At the stage of hearing of the said application, the Judgment debtor filed an application praying for issuance of summons upon the said Bacchu Roy who put his signature as a witness on the writ of delivery of possession. The Executing Court initially allowed the application of the Judgment debtor and directed him to take step for issuance of summons to the said witness. Summons was accordingly sent but it was returned with an endorsement that the said summons could not be served as the residential address of Bacchu Roy falls within the jurisdiction of another Court. Subsequently, the Judgment debtor made an application praying for issuance of warrant of arrest against the above-named witness. The Executing Court rejected the said application and fixed the application under Rule 208 of the Civil Rules and Orders for hearing. On 4th August, 2018, the Judgment debtor filed an application for adjournment of hearing of argument in respect of the application under Rule 208 of the Civil Rules and Orders and another application praying for recalling the order dated 21st April, 2018 wherein and whereunder the Executing Court rejected the prayer of the Judgment debtor for issuance of warrant against the said witness, namely, Bacchu Roy.
In the instant revision order dated 4th August, 2018 is under challenge at the instance of the Judgment debtor.
I have heard Mr. Siva Prosad Ghose, learned Advocate for the Judgment debtor/petitioner and Mr. Arijit Sarkar, learned Advocate for the decree- holder/opposite party.
In course of argument it is submitted by Mr. Siva Prosad Ghose, learned Advocate for the petitioner that the Judgment debtor did not resist the Court 3 Bailiff when he went to the suit premises to execute the writ of possession. The Judgment debtor has challenged the truthfulness or authenticity of the report of the Court Bailiff to the effect that the said Court Bailiff was resisted by the Judgment debtor and his men and agents. For this purpose, evidence of Bacchu Roy was absolutely necessary because he is only disinterested witness who would be able to tell the truth before the Court as to whether resistance was offered or not at the time of execution of the decree.
It is also submitted by Mr. Siva Prosad Ghose, learned Advocate for the petitioner that offering resistance and apprehension of serious breach of public peace are the sine qua non of granting police help in favour of the decree-holder while executing a writ for delivery of possession of decreetal property. Where there is no resistance, question of police help does not arise.
This Court is in full agreement with the submission made by the learned Advocate for the Judgment debtor/petitioner. If the submission of the learned Counsel for the petitioner is accepted on its face value, then the Judgment debtor did not give any resistance to the Court Bailiff at the time of execution of the writ of possession.
In view of such circumstances and giving due honour to the submission made by the learned Advocate for the Judgment debtor/petitioner, I direct the Executing Court to issue writ of possession in the name of a competent Court Bailiff, but not in the name of previous Court Bailiff who submitted the report under challenge for execution. If the said writ of possession is peacefully executed, the execution case will be disposed of on full satisfaction.
If however, there is any resistance on the part of the Judgment debtor, the Executing Court will be at liberty to take up the application under Section 208 of the Civil Rules and Orders for hearing argument and pass necessary order according to law.
4Entire exercise must be completed within one month from the date. The instant revision is, thus, disposed of on contest, however without cost.
Let a copy of this order be sent to the learned Executing Court for information and compliance.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
(Bibek Chaudhuri, J.)