Calcutta High Court (Appellete Side)
Kangali Chanran Deyashi vs Kanailal Chari & Ors on 7 December, 2016
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 10. 07.12.2016
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 4415 of 2016 Kangali Deyashi alias Kangali Chanran Deyashi
-Vs.-
Kanailal Chari & Ors.
Mr. Buddhadev Ghosal, Mr. Souri Ghosal, Ms. Suman Jaiswal ... for the petitioner Mr. Bidyut Banerjee, Mr. Arnab Roy, Ms. Priyanka Mondal ...for the opposite parties This revisional application at the instance of the defendant judgment-debtor in an eviction suit is directed against the order dated November 07, 2016 passed by the learned Civil Judge (Junior Division) at Amta, Howrah in Title Execution No. 06 of 2007. By the impugned order, the learned Court below has allowed the application filed by the opposite parties decree-holders under Section 151 of the Code of Civil Procedure, 1908 (in short "the Code"), being Misc. Case No.8 of 2014 for police help and directed the Officer-in-Charge, Udaynarayanpur Police Station, to be personally present with his armed forces during the execution 2 process, to ensure peaceful execution of the eviction decree and to take all necessary legal actions to execute the decree.
The facts giving rise to the present revisional application are that in the year 2006, the plaintiffs opposite parties filed the Title Suit No. 454 of 2006, (hereinafter referred to as "the ejectment suit") before the learned Civil Judge (Junior Division) at Amta, Howrah against the defendant petitioner, claiming a decree for his eviction from the suit property. The defendant petitioner did not contest the suit and, as such, on May 21, 2007 the learned Trial Judge passed an ex parte decree for his eviction from the suit property, being 'Ka" Schedule property of the plaint. Thereafter, the plaintiffs opposite parties put the said decree dated May 21, 2007 into execution and the same was registered as Title Execution Case No. 6 of 2007. The defendant petitioner put obstruction to the Bailiff in execution of the decree and, as such, the plaintiffs opposite parties filed an application, being Misc. Case No. 3 of 2008, for police help. On April 16, 2008 when the Bailiff and the police authorities sought to execute the decree, the defendant petitioner and her associates including, the Panchayat Prodhan put up resistance and the decree could not be executed. Thereafter, the defendant petitioner filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (in short "the Code") before the learned trial Judge praying for, recalling of 3 the said ex parte decree dated May 21, 2007. On August 11, 2011 the application filed by the defendant petitioner under Order IX Rule 13 of the Code was rejected by the learned trial Judge on contest. The defendant petitioner carried the said order of dismissal passed by the learned trial Judge in appeal, being Misc. Appeal No. 292 of 2011, before the learned District Judge, Howrah. On April 25, 2012 the said appeal, being Misc. Appeal No. 292 of 2011, stood dismissed for default. The said appeal has not yet been restored. The defendant petitioner filed an application under Section 47 of the Code in Title Execution Case No. 6 of 2007 and the same was registered as Misc. Case no. 5 of 2011. By order dated February 28, 2013 the learned Court below rejected the said application filed by the defendant petitioner under Section 47 of the Code. By filing a revisional application, being C.O 1849 of 2013, under Article 227 of the Constitution of India, the defendant petitioner challenged the said order dated February 28, 2013 passed by the learned Court below but, he was unsuccessful. On August 14, 2013 a learned Single Judge of this Court dismissed the said revisional application, being C.O. 1849 of 2013. The defendant petitioner did not assail the said order dated August 14, 2013 before any higher forum. On March 01, 2014, the learned Court below rejected the application filed by the defendant petitioner praying for, stay of the execution proceeding and 4 directed the dealing assistant to issue Writ of Possession with police help and submit a report. However, since the application of the plaintiffs opposite parties for police help was kept pending, the plaintiffs opposite parties approached this Court by filing a revisional application under Article 227 of the Constitution of India, being C.O. 2843 of 2014. On August 25, 2014 a learned Single Judge of this Court disposed of the said revisional application, being C.O. 2843 of 2014, by directing the learned Executing Court to conclude the execution proceeding within eight months from the date of receipt of the copy of the said order and to implement the police help immediately. The said order dated August 25, 2014 was duly communicated to the petitioner on August 29, 2014. Thereafter, the defendant petitioner filed an application under Order XXI Rule 101 read with Section 151 of the Code and the same was registered as Misc. Case No. 8 of 2014. In the said application, the defendant petitioner prayed for, stay of all further proceedings in the said Misc. Case No. 3 of 2008 where the plaintiffs opposite parties had prayed for police help. By order dated February 27, 2015 the learned Court below allowed the said application of the defendant petitioner and stayed all further proceedings of execution proceeding, being Misc. Case No. 3 of 2008. The plaintiffs opposite parties challenged the said order dated February 27, 2015 by filing a revisional application, being 5 C.O. 1301 of 2015, before this Court. By order dated August 12, 2015 a learned Single Judge of this Court allowed the said revisional application and set aside the order dated February 27, 2015 passed by the learned Court below. Now, by the impugned order, the learned Court below allowed the said Misc. Case No. 8 of 2014 filed by the plaintiffs opposite parities for police help to execute the decree with the directions recorded above.
Mr. Ghosal, learned advocate appearing in support of the revisional application advanced argument that in view of the provisions contained in Article 129 of the Limitation Act, the application filed by the plaintiffs petitioners, being Misc. Case No. 8 of 2014, praying for police help for execution of the decree was barred by limitation and the learned Court below lacked jurisdiction to pass the impugned order directing the police authorities to render assistance for execution of the eviction decree. In support of such contention, Mr. Ghosal relied on a Single Bench decision of the Rajasthan High Court in the case of Narayan & Anr. Vs. Smt. Kalan Bai, reported in AIR 1986 Rajasthan 52. He further contended that the occupation of the defendant petitioner in respect of the suit property is protected under the West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act, 1975 (in short "the Act of 1975"). Lastly, he argued that the initial order 6 dated January 24, 2008 passed by the learned Court below for police help without granting any opportunity of hearing to the defendant petitioner cannot be sustained. In this regard he relied on the decision of a Learned Single Judge of this Court in the case of Nandalal Ghosh vs. Saktipada Bag & Ors., reported in 2009(2)CLJ (Cal) 719. On these grounds, Mr. Ghosal urged for setting aside of the impugned order passed by the learned Trial Judge.
However, Mr. Bidyut Banerjee, learned senior advocate appearing on behalf of the plaintiffs opposite parties strenuously contended that the present revisional application at the instance of the defendant petitioner has no merit and the same has been filed in a desperate attempt to stall the execution proceeding and thereby to deprive the plaintiffs opposite parties to get the benefit of the eviction decree obtained by them against the defendant petitioner. Mr. Banerjee relied on a decision of the Supreme Court in the case of Mehmood Ahmed Siddiqui vs. Nawab & Ors., reported in (2007) 14 SCC 304. He submitted that in the facts of the present case, it is evident that the defendant petitioner has made all attempts to stall the execution proceedings by filing one after another application and the same have been decided both by the learned trial Judge, as also by this Court against him. He urged that the decision of the learned Single Judge of the 7 Rajasthan High Court in Narayan & Anr. (supra) has no manner of application in the facts of the present case. He pointed out that the defendant petitioner has not disputed the fact that he is still putting up obstruction in execution of the decree for which police help is essential. According to him, even by the order dated August 29, 2014 passed in C.O. 2843 of 2014 a learned Single Judge of this Court in exercise of jurisdiction under Article 227 of the Constitution of India directed the learned Court below to conclude the execution proceeding within eight months from the date of receipt of the copy of the order. Mr. Banerjee strongly contended that while challenging the impugned order dated November 07, 2016 the defendant petitioner cannot urge any ground to challenge the order dated January 24, 2008 passed by the learned Court below for the first time directing police help. Thus, according to him, the said decision of the learned Single Judge of this Court in the case of Nandalal Ghosh (supra) has no manner of application in the present case. With regard to the point urged on behalf of the defendant petitioner, that his possession in respect of the suit property is governed by the said Act of 1975 is concerned, in a revisional application, being C.O. 2143 of 1995 filed by the petitioner himself, a Learned Single Judge of this Court repealed the said contention and, in any event, the defendant petitioner on this belated stage cannot urge the said ground. 8
I have considered the facts of the case, the materials on record as well as the submission made by both Mr. Ghosal and Mr. Banerjee learned counsel for the respective parties.
From the facts recorded above, it is clear that it was on May 21, 2007 when the plaintiffs opposite parties obtained the decree for eviction against the defendant petitioner. The application filed by the defendant petitioner under Order IX Rule 13 of the Code stood dismissed on August 11, 2011. The appeal filed against the said order dated August 11, 2011 also stood dismissed for default on April 24, 2012. The said order dated April 24, 2012 has not yet either been recalled or interfered by any superior forum. However, the defendant petitioner has all along been successful to stall the execution proceeding by filing one application or the other and all the orders which he obtained from the trial Court, as mentioned above, have been set aside by this Court in exercising jurisdiction under Article 227 of the Constitution of India, which have not been challenged by the petitioner in any superior Court. By the order dated August 29, 2014 a learned Single Judge of this Court while exercising jurisdiction under Article 227 of the Constitution of India directed the learned Court below, being the executing Court, to conclude the execution proceeding within eight months from the date of receipt of the copy of the said order. In spite of all these undisputed facts, the petitioner has now challenged the impugned 9 order passed by the learned Court below in a desperate attempt to stall the execution of the eviction decree against him.
From the facts of the case, as recorded above, it is clear that the plaintiffs opposite parties obtained the said decree dated August 21, 2007 for recovery of possession of the suit property from the defendant petitioner, but the defendant petitioner has thwarted the execution of the said decree by filing one after another application. Considering the facts of the case, I find it appropriate to quote paragraph 5 of the decision of the Supreme Court in the case of Mehmood Ahmed Siddiqui (supra) relied on by the plaintiffs opposite parties.
"5. As the suit for recovery of possession of the property in question was filed in the year 1995 in which ex parte decree was passed in the year 1998 and more than nine years have expired from that date, but no one ground or the other, decree has not been allowed to be executed, we hereby direct the executing court to see that the vacant possession of the subject of dispute is delivered to the decree-holders within a period of one month from the date of receipt/production of copy of this order. In case for delivery of possession any armed force is necessary, the executing court shall requisition the same from the Superintendent of Police concerned, who shall depute it within forty-eight hours from the date the requisition is received by him. It is further directed that if any person other than the judgment-debtor is found in possession, he shall be also dispossessed by the armed force."
So far as the contention raised on behalf of the defendant petitioner that application filed by the plaintiffs opposite parties for police help is barred by Article 129 of the Limitation Act, 1963, I 10 find no merit. Admittedly, the application filed by the plaintiffs in which the impugned order was passed, was filed under Section 151 of the Code for implementing the direction passed by a learned Single Judge of this Court on August 29, 2014 in C.O. 2843 of 2014 and, as such, Article 129 of the Limitation Act has no application in this Case. Therefore, the decision of a learned Single Judge of the Rajasthan High Court in the case of Narayan & Anr. (supra) has no application in the present case. In the facts of the present case, the defendant petitioner cannot challenge the order dated April 16, 2008 and the decision of a learned Single Judge in the case of Nandalal Das (supra) has no relevance. Further, the petitioner having failed in this application under Section 47 of the Code cannot set up the said Act of 1975 to stall the execution of the eviction decree.
Having considered the facts of the present case and in the light of the above decision of the Supreme Court in the case of Mehmood A. Siddiqui (supra) quoted above, I find no merit in the present revisional application.
Accordingly, the revisional application, being C.O. 4415 of 2016, stands rejected with costs assessed at Rs.10,000/- (Rupees Ten Thousand Only) to be paid by the petitioner to the High Court Legal Services Authority within December 19, 2016. 11
In view of the fact that the defendant petitioner has stalled the execution of the eviction decree passed by the learned trial Court way back on May 21, 2007, I also direct the Superintendent of Police, Rural, District - Howrah to render all assistance, by engaging sufficient and adequate number of police personnel, in and around the suit property, on December 08, 2016 for execution of the decree as directed by the learned Civil Judge (Junior Division) at Amta, Howrah by order dated November 07, 2007 in Title Execution Case no. 6 of 2007.
Let, this application appear under the same heading on December 20, 2016 to ascertain whether the above directions passed by this Court have been complied with or not.
Let, plain copies of this order, duly countersigned by the Assistant Registrar (Court) he handed over to the parties upon usual undertaking.
(Ashis Kumar Chakraborty, J.)