Indian Kanoon - Search engine for Indian Law

09. Thereafter, the decree holders filed an application seeking reissue of delivery warrant with permission to break open the lock with police help invoking Order XXI Rule 35(3) CPC. In the affidavit filed in support of the application, the decree holder - respondent No.9 herein has asserted that, as was evident from the Bailiff's report, the premises was kept locked by the judgment debtor and therefore, execution of the decree was frustrated, hence, it was necessary to issue fresh delivery warrant with permission to break open the lock providing requisite police help. The decree holders did not mention anything about the occupation of the premises by the Advocate - respondent No.2/ objector herein which fact has been noticed by the Bailiff while returning the delivery warrant unexecuted. They did not make any application under Order XXI Rule 97 CPC seeking removal of obstruction and for obtaining possession of the property. Instead, suppressing the occupation of the premises by the petitioner, relief for breaking open the lock with police help was sought.

10. The executing Court issued delivery warrant and granted police help to break open the lock to execute the decree. It has recorded in the order sheet that Bailiff's report was perused. The order reissuing delivery warrant with police help to break open the lock does not notice the occupation of the premises by the petitioner who is a third party and who was not a party to the suit for ejectment or to the execution proceedings. Based on the said order, respondent No.2/objector has been dispossessed from the premises in the purported execution of the decree obtained against the judgment debtor - respondent No.10.

13. On hearing both parties and considering entire materials on record, the High Court has passed an order dated 25.09.2014 as under:

"Heard the learned counsel for both parties and perused the entire materials on record. It is undeniable that as per the report of the Bailiff, the premises which is the subject matter of decree of ejectment was in occupation of the petitioner. The report of the Bailiff, copy of which is produced at Annexure-F specifically and clearly mentions that the board of advocate Sri K.S.Ponnappa (petitioner herein) was hung in the premises and it was in his occupation. The report further states that the door of the premises had been locked and nobody from judgment debtor's side came to the spot to open the door. This report is signed by two other witnesses. This report was filed before the learned Judge. When the decree holders moved another application seeking reissue of warrant to break open the lock with police help, the Court below did not bother to look into this report and to notice the occupation of the petitioner. The Court below has blindly reissued the warrant directing breaking open the lock with police help and for delivery of possession to the judgment debtors. As a result of this order, petitioner - 3rd party has been dispossessed from the premises.

33. Another Bailiff by name M.B.Mallikarjun is examined as CW2 and the documents are marked as Exhibit-C9 and C10. Exhibit-C10 is the delivery warrant with report and mahazar dated 28.01.2014. CW1 has admitted Exhibit-C2 - Mahazar dated 18.12.2013. The said report discloses that the petition premises to be vacated was in the possession of respondent No.2/objector Sri.K.S.Ponnappa, Advocate. Despite having the knowledge about the possession of the respondent No.2/objector, he has submitted report as per Exhibit-C5, as "door locked" and has recommended for breaking open the lock with police help. Thus, it appears that the said report was prepared at the instance of the decree holders/revision petitioners. While passing the order, the executing Court has not perused the report-Exhibit-C2 properly and has passed an order for issuance of delivery warrant by breaking open the lock with police help. The documents at Exhibit-C1 and C8 are the report and mahazar. The contents of the said documents discloses that the respondent No.2/objector was present in his office. In such circumstances, there should have been a specific order for vacating the respondent No.2/objector from the said premises. Instead, the report was submitted by the Bailiff for breaking open the lock by taking police help. Exhibit-C7 - mahazar discloses that the furniture, moveable properties, case papers, books and other documents belonging to respondent No.2/objector were taken out from the office with the help of decree holders. CW1 has admitted Exhibits-P47, 50, 51, 52, 56 and 57 which are photographs showing the actual situation at the spot. CW1 has not at all acted according to the procedure prescribed and the belongings of respondent No.2/objector have been thrown out with the help of decree holders.