Calcutta High Court
Satyajit Guha vs Srimati Rati Sen Sharma on 26 July, 2002
Equivalent citations: (2003)1CALLT415(HC)
JUDGMENT N.C. Sil, J.
1. This revisional application is directed against the order No. 58 dated 11.3.2002 passed by Shri S. Neyogi, learned Civil Judge, Senior Division, second Court, Hooghly in connection with Miscellaneous Case No. 1 of 2002 refusing to review the order No. 50 dated 7.12.2001 passed by him which arose in connection with Title Execution case No. 2 of 1997. The said Title Execution case arose out of Title Suit No. 61 of 1990.
2. A Title Suit being No. 61 of 1990 was filed before the learned Assistant District Judge, Hooghly who after hearing the parties passed the decree of eviction directing the petitioner/applicant to deliver clear, vacant and khas possession of the suit premises within 30.9.1996. The learned Judge also passed the decree of mesne profit. Being aggrieved by the said judgment and decree the petitioner preferred an appeal before the learned District Judge, Hooghly which as registered as Title Appeal No. 215 of 1996. In the said appeal the plaintiff/decree-holder/opposite party filed an application under Order 21 Rule 11 of the Code of Civil Procedure for executing the decree. Thereafter the plaintiff/decree-holder filed an application under Rule 208 of the Civil Rules and Orders in the Title Execution Case No. 2 of 1997 which was pending before the trial Court. In the said Executive Case and Bidhan Bhattacharjee deposed as PW1 wherein it was stated that the plaintiff/decree-holder is his wife. After considering the evidence the Execution Court allowed the prayer for police help under Rule 208 of the Civil Rules and Orders, although the plaintiff/decree-holder did not file any application under Order 21 Rule 97 of the Code of Civil Procedure before filing the application under Rule 208 of the Civil Rules and Orders. By virtue of that order the said Bidhan Bhattacharjee along with the police official went to the suit premises and granted 3 days time to the defendant family on their request for bringing stay order from the Court of the Additional District Judge, First Court, Hooghly who was in session of Title Appeal No. 215 of 1996. Thereafter on 19.6.1998 the learned Additional District Judge passed a stay order whereby all further proceedings in Title Execution case No. 2 of 1997 were stayed and the learned Executing Court recalled the writ for delivery of possession. Ultimately the learned Additional District Judge was pleased to dismiss the appeal affirming the judgment and decree passed by the trial Court. Thereafter the defendant preferred a second appeal in the High Court and the same was registered as SAT No. 193 of 2001. The said second appeal was also dismissed by the Hon'ble Division Bench of the High Court on 2.3.2001 and the petitioner preferred a Special Leave petition before the Hon'ble Apex Court which was also dismissed. That being the position the plaintiff/decree-holder/opposite party filed another application for police help under Rule 208 of the Civil Rules and Orders in the Title Execution case No. 2 of 1997. At this stage the said Bidhan Bhattacharjee was cross-examined by the petitioner wherein it was admitted by him that no application under Order 21, Rule 97 of the Code of Civil Procedure was filed in the said Title Execution case. On 21.7.2001, the process server went to the suit premises and the alleged second resistance was caused but It is admitted by the process server that he did not lodge any General Diary or First Information Report for such alleged resistance. The application for police help under Rule 208 of the Civil Rules and Orders came up for final hearing on 1.12.2001. Written argument was filed by the learned advocate for the defendant/judgment-debtor/petitioner there at the time of hearing but the learned executing Court was pleased to allow the application for police help by his order No. 50 dated 7.12.2001 under Rule 208 of the Civil Rules and Orders. Being aggrieved by that order the petitioner filed an application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure for review of the said order and the said case was registered as Miscellaneous case No. 1 of 2002. The said Miscellaneous case was dismissed by order No. 58 dated 11.3.2002. On 15.3.2002 the petitioner moved a stay application in the said Title Execution case in order to bring the necessary order from the superior Court and the learned Executing Court was pleased to allow that petition. And against the said order No. 58 dated 11.3.2002 the present revisional application has been filed.
3. It is further stated that the learned Executing Court acted with material irregularity in allowing the prayer for police help and in refusing to review the order granting police assistance and also in considering the submissions made by the petitioner/judgment-debtor set out in the written argument. The learned trial Court also erred to appreciate the position that an application under Rule 208 of the Civil Rules and Orders is a subsidiary to the application under Order 21 Rule 97 of the Code of Civil Procedure and in the absence of any such application under Order 21 Rule 97 of the Civil Procedure Code the application under Rule 208 of the Civil Rules and Orders becomes infructuous.
4. Mr. Sadananda Ganguly, the learned advocate appearing for the petitioner/tenant/judgment-debtor submits before me that first comes the petition under Order 21 Rule 97 of the Code of Civil Procedure and at the second stage the application of the Rule 208 of the Civil Rules and Orders may arise. But in the instant case, admittedly no application under Order 21 Rule 97 of the Code of Civil Procedure had been filed, he further submits. It is also pointed out by him that in the order disposing the review application the learned Executing Court did not consider this point although the same was raised in the written argument. In order to substantiate his submission, Mr. Ganguly has referred to a number of case laws which I shall discuss at the appropriate point of time.
5. Mr. Jyotinnoy Bhattacharjee, learned advocate appearing on behalf of the opposite party/landlord/decree-holder submits that the petitioner lost the case at all level up to the Apex Court. It is pointed out by Mr. Bhattacharjee that it was for the second time that the opposite party sought police help for the execution of the decree. It is also pointed out by him that on the first occasion that the petitioner/judgment-debtor took three days time to vacate the suit premises but ultimately they did not caveat and instead they involved the decree-holder in legal wrangle which went upto the Hon'ble Apex Court. Mr. Bhattacharjee has tried to distinguish the situation of police help under the provisions of Rule 208 of the CRO and under Order 21 Rule 97(1) of the Code of Civil Procedure. It is submitted by him that the former provision can be invoked when there is anticipation or apprehension of breach of peace but latter one can be invoked when there is actual resistance. Mr. Bhattacharjee then argues that it is to be looked into whether in the impugned order the learned executing Court stated the reason for the decision he had arrived at.
6. Mr. Bhattacharjee further argues before me that in fact two orders being No. 50 dated 7.12.2001 and 58 dated 11.3.2002 have been challenged here in the present revisional application. It is also pointed by him that the order No. 58 is in connection with the petition under Order 47 Rule 1 of the Code Civil Procedure which was rejected by the learned lower Court. It is also submitted by him that Order No. 50 dated 7.12.2001 which has also been challenged in the present revisional application is barred by limitation by 32 days and in such circumstances only order No. 58 dated 11.3.2002 may be considered. Mr. Bhattacharjee has also argued that an application under Section 5 of the Limitation Act has been filed in the application being CAN No. 3962 of 2002 on 2.5.2002 and the ground taken therein is non-advice of the lawyer. Mr. Bhattacharjee has also referred to a number of case laws which I shall discuss at the appropriate point of time.
7. From the submissions of the learned counsels for the parties it appears to me to explore as to whether there were sufficient grounds for review of order No. 50 dated 7.12.2001 although by the order No. 58 dated 11.3.2002 the application for review of the order No. 50 dated 7.12.2001 was rejected. The other point which appears relevant to me to determine here in the instant case is whether the application for police help under Rule 208 of CRO stands independent of the application under order 21 Rule 97 of the Code of Civil Procedure. The xerox copy of the order No. 50 dated 7.12.2001 has been annexed in the file. I like to quote the relevant portion of that order passed by the learned executing Court which reads as under:
"From the evidence of the petitioner, process serve and also from the reports of the police and the Process Server it appears that on 17.6.98 when they were at the locale for execution of the writ, the JDR along with his men were present. There were also local Councillor and other public who resisted the execution of the decree. The police personnel present there was not sufficient for execution work. It also appears that a settlement was then made and a few days were allowed to JDR to leave the suit premiss. It is also mentioned in Ext. A that Bidhan Bhattacharjee who looks after the petitioner's case also requested the police not to apply force in the prevailing circumstances. Opposite party W1 has also admitted that they were allowed 3 days time to vacate the suit premises. The entire evidence on record along with the reports of the Process Server and the Police, if put together, presents a strong circumstances in favour of police assistance in execution of the decree obtained by DHR. That being so, I think there is no reason to reject the prayer for police help as prayed for by the petitioner."
8. The certified copy of the order No. 58 dated 11.3.2002 has also been annexed in the file. On perusal of the said order it appears that the main ground taken there is that the application for police help under Rule 208 of CRO was subsidiary application to one under Order 21 Rule 97 of the Code of Civil Procedure and it was also canvassed there that as there was no such application under Order 21 Rule 97 of the Code of Civil Procedure the application under Rule 208 of CRO cannot stand independently. The learned executing Court after hearing the parties observed inter alia that the similar point was agitated when the petition under Rule 208 of CRO was taken up for consideration and order being No. 450 dated 7.12.2001 was passed and as such he leaned trial Court declined to review the order.
9. Mr. Sadananda Ganguli, the learned counsel for the petitioner has referred to the ratio decided in the case of Mr. Ajit Kumar Ray v. Jnanendra Nath Dey & Ors. . The learned single Judge was pleased to hold in that case that the prayer for police help may be made by the decree-holder either in an application under Rule 97 and/or 98 of Order 21, Code of Civil Procedure or separately without filing such application or before any specific obstruction made by a particular person. But 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 the execution of the decree. It was further observed in that judgment that the application for police help is a discretionary mater to the Judicial Officer who deals with it. Thus it goes to show that the application for police help under Rule 208 of CRO can stand separately. It was decided in the case of M.M.B. Catholicos & Anr. v. M.P. Athanasius (AIR 1954 SC 526} that the words "any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the rule. It was decided in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation that it is not settled law that the statement of facts recorded by a Court or Quasi-judicial Tribunal in its proceedings as regards the matters which transpired during the bearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the Court/tribunal and to have it deleted or amended. It is not, therefore, open to the parties or the counsel to say that the proceedings recorded by the tribunal are incorrect. By this judgment the learned advocate for the petitioner tries to justify as to what prompted the petitioner to file the review application and thereafter the present revisional application. The learned advocate for the petitioner has also referred to the ratio decided in the case of Tinkari Sen & Ors. v. Dulal Chandra Das wherein it was inter alia held that "mistake or error apparent on the face of the record" does not mean mistake in interpreting the law correctly but when clear legal position established by binding authority is overlooked, it becomes an error within the meaning of Order 47 Rule 1 of the Code of Civil Procedure.
10. Mr. Jyotirmoy Bhattacharjee, learned advocate appearing for the opposite party/decree-holder has referred to the ratio decided in the case of Chandra Dhar v. Khokon Routh [CLT 1999(1) HC 432]. The learned single Judge appears to have distinguished the judgment of the Hon'ble Division Bench of this Court decided in the case of Smt Usha Ghosh v. Rabindranath Das & Ors. and came to the following conclusion;-
"In conclusion, it cannot be said that an application for police help for execution of a decree for possession of immovable property must necessarily be under Order 21 Rule 97 but not under Civil Rule 208 of the said Civil Rules alone under any circumstances whatsoever. As pointed out hereinbefore if an application is made under Rule 208 of the said Civil Rules, the executing Court before making an order for police help will necessarily consider the facts and circumstances made out in the petition by the decree holder and will give opportunity of hearing to the judgment debtor and such other persons as it thinks fit and proper. If it is of the opinion that there are reasonable grounds to support that the execution will not be effected without danger to the public peace if police help is not provided and the judgment debtor and/or such other persons, who had resisted and are supposed to offer resistance in the execution of the writ have no semblance of interest in the property in question but merely obstructed the due process of Court which may cause danger to the public peace then only it will pass order for police help. If however, in course of consideration of the application under Rule 208 of the said Civil Rules it appears to the Court at a semblance of right, title and interest in the decretal immovable property has occasioned resistance to the execution of the decree then the Court may treat the same as an application under Order 21 Rule 97 by permitting the decree-holder to put forward his further pleadings in terms of the said provisions of Code and will thereafter invite pleadings from the parties resisting the execution and will decide the same as per the provisions of Code as stated hereinbefore for the purpose of granting police help."
11. Now in view of the above discussions and the position of law established by the different judicial pronouncements referred to above it is candid that the application under Rule 208 CRO is never dependent on filing of application under Order 21 Rule 97 of the Code of Civil Procedure. The order impugned being No. 50 dated 7.12.2001 goes to show that the learned executing Court did consider the apprehension of breach of peace in its proper perspective and from that point of view there appears no application of the provisions of Orders 47 Rule 1 of the Code of Civil Procedure, and as such 1 do not find any illegality or irregularity in the order impugned being No. 58 dated 11.3.2002 passed by the learned trial Court. After this observation the application under Section 5 of the Limitation Act appearing in CAN 3962 of 2002 becomes totally infructuous. The circumstances of the case are amply suggestive of misuse of judicial process at the instance of the petitioner/judgment-debtor and from that point of view I do not find any merit in the present revisional application under Section 115 of the Code of Civil Procedure for which the same is liable to be dismissed.
The revisional application under Section 115 of the Code of Civil Procedure is thus dismissed on contest with costs of 50 G.M. to be paid to the opposite party. The application under Section 5 of the Limitation Act in CA1 3962 of 2002 is accordingly disposed of.
All interim orders, if any, are hereby vacated.
A copy of this order be sent down to the learned lower Court immediately.