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Panka Lal Bag Vs. Santosh Kumar Sikdar - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 63 of 1982
Judge
Reported inAIR1984Cal232,88CWN504
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 21, Rule 97; ;Limitation Act, 1963 - Schedule - Article 129; ;Calcutta High Court Original Side Rules, 1914 - Rule 14; ;Calcutta High Court Civil Rules and Order - Rule 208
AppellantPanka Lal Bag
RespondentSantosh Kumar Sikdar
Appellant AdvocateR.N. Mitra and ;S.N. Roy, Advs.
Respondent AdvocateH.P. Saha, Adv.
DispositionApplication rejected
Cases Referred(Gaya Nath v. Amulya Chandra). The
Excerpt:
- .....rules for dealing with such an application for police help. in this connection rule 208 of the civil rules and orders (guidelines for the subordinate courts) and also rules 14 (a) to 14 (g) of chapter 17 of the original side rules (guidelines for the original side of this court) may be referred to.6. bachwat j. in the calcutta ease referred to above has held that procedure under order 21, rule 97 is the original proceeding in execution. he observed that the lis is commenced by a petition or complaint. the cause of complaint is resistance or obstruction of the warrant of possession by the bailiff and when such obstruction is made or decree-holder faces a resistance he may apply under order 21, rule 97 of the civil p. c. and he has to do so within 30 days of the obstruction complained.....
Judgment:

Asha Mukul Pal, J.

1. This is an application under Section 115 of the Civil P. C. made by the judgment-debtor against the order passed by the learned 2nd Munsiff at Sealdah on 19-12-81, dismissing the application of the petitioner (judgment-debtor) made under Section 115 (Section 151?) of the Civil P. C. for vacating the Order No. 16 passed by the Court on 17-3-81 under Order 21, Rule 97 for police help for execution of the decree originally passed.

2. The learned Munsiff has recounted history of this case in the impugned order with reference to the conduct of the petitioner and refused to grant any relief under Section 151 of the Civil P. C. He stated that there were unsuccessful attempts of the petitioner (judgment-debtor) for stay of execution particularly on the plea that he would prefer a second appeal in the Hon'ble High Court. Some time was granted. Three months thereafter another application was made for stay on the ground that the judgment-debtor will file an appeal in the Supreme Court. Direction was made by the Court to put in a sum of Rupees 20,000/- before such a stay could be granted. The money was not deposited and the application was ultimately rejected and the execution case was allowed to be proceeded with. Learned Munsiff held that the application was a vexatious one. It was only an attempt to enjoy the interest which he had decidedly been denied by the Court of justice. 'I do not find it to be a fit case where I may invoke the inherent power under Section 151 of the Civil P. C.'

3. Mr. Mitra, Counsel for the petitioner argued that the application that was made for police help was time barred by the Laws of Limitation under Article 129 of the Limitation Act. He referred to me the Nazir's report dated 2nd December 1980 and argued that as resistance was made on 2-12-80 for possession the application could be made but this should have been made within a period of 30 days as provided under Article 129 of the Limitation Act. As the application was made on 9th of January, 1981, the application was time barred.

4. I am not inclined to accept the contention of Mr. Mitra. The limitation for possession after removing the resistance or obstruction to delivery of possession to immovable property decreed is 30 days after the date of resistance or obstruction but the application for police help cannot come within this category. It is not by itself an application for possession nor is it an application under Order 21, Rule 97 of the Civil P. C. In an application for police help the applicant's prayer is to give him the aid of the police for executing the decree for possession which is the ultimate object. The application for police help is different from the main application. It is a subsidiary application to the main application for execution. In this connection I may refer to a judgment reported in : AIR1957Cal252 (Gaya Nath v. Amulya Chandra). The said judgment supports the view that an application for police help is essentially different from an application under Order 21, Rule 97.

5. It is common knowledge that police help is sought for in the matter of execution when there is apprehension of breach of peace. It is resorted to for the sake of security for all connected with the execution. The apprehension of the breach of peace generally is one of the main grounds for such an application for police help. Court has to scrutinise the facts and circumstances to ascertain whether such a prayer would be allowed before it is granted. The application for police help is not an application for execution within the meaning under Order 21, Rule 97 of the Civil P. C. The person seeking to execute will make an application to the Court if obstructed complaining of any resistance or obstruction as provided under Order 21, Rule 97 of the Civil P. C. and if such a complaint is made other provisions of Order 21, Rule 97 will follow. But police help is entirely different. If the decree cannot be executed without police help be-cause of the conduct of the persons occupying the premises--may they be judgment-debtors or any other person or persons and such conduct tends to create an atmosphere of breach of peace the decree-holder may apply to the Court for grant of such help stating the reasons. The very nature of the application for police help is essentially different from an application under Order 21, Rule 97. It may be noted that the Court has framed diverse rules for dealing with such an application for police help. In this connection Rule 208 of the Civil Rules and Orders (guidelines for the subordinate courts) and also Rules 14 (a) to 14 (g) of Chapter 17 of the Original Side Rules (guidelines for the original side of this Court) may be referred to.

6. Bachwat J. in the Calcutta ease referred to above has held that procedure under Order 21, Rule 97 is the original proceeding in execution. He observed that the lis is commenced by a petition or complaint. The cause of complaint is resistance or obstruction of the warrant of possession by the bailiff and when such obstruction is made or decree-holder faces a resistance he may apply under Order 21, Rule 97 of the Civil P. C. and he has to do so within 30 days of the obstruction complained of. The application for police help is not coming within the category of Order 21, Rule 97 of Civil P. C. If in spite of the application made under Order 21, Rule 97 the decree-holder does not get possession if he is still resisted by the party and because of the existing circumstances and prevailing atmosphere and/or the situation in the locality such help is necessary then only police help can be granted and as T have already mentioned for such help rules have been framed both in the subordinate Courts and in the original side of the High Courts laying down guidelines for such help.

7. On proper construction of these rules it is clear that the police help is an extraordinary mode or procedure to implement execution of the decree. This special procedure of police help would only be allowed when grounds as enumerated in Rule 208 of the Civil Rules and Orders or in the relevant original side rules exist. Under provisions of Article 129 of the Limitation Act, for possession of immovable property application would have to be made within 30 days of resistance. Such application cannot be equated with the application for police help in view of the fact that for police help there need not be any actual resistance and such a help can be prayed for and such a procedure can be availed of at any time even when breach of peace is apprehended or anticipated police help is an aid to execution, not the execution by itself and the provisions of Article 129 of the Limitation Act have no application for resorting to such a special legal procedure.

8. Besides, this present application is made under Section 115 of the C. P. C. Mr. Mitra challenges the order of the learned Munsiff dismissing the application under Section 151 of the Civil P. C. The Counsel for the decree-holder pointed out to me that the petitioner could have come in appeal under Rule 103 of Order 21 of the Civil P. C But he did not; instead he made an application under Section 151 of the Civil P. C. which he contended was rightly dismissed. The entire move of the judgment-debtor he contended was to delay the matter as long as possible and the application was frivolus. In order to deal with the present application under Section 115 of Civil P. C. I am to see whether the learned Munsiff fell into an error of jurisdiction or acted illegally or exercised the jurisdiction with material irregularity. I do not find any such factor vitiating his order; instead he recounted the facts, dealt with the conduct of the judgment-debtor referred to the huge amount of money that was remaining unpaid to the decrees-holder legitimately due to him, failure to pay the security money when stay of the proceedings was prayed for and then rejected the application under Section 151 of Civil P. C. Learned Munsiff commented 'after many a battles even in second appeal the judgment-debtor has filed the instant petition only to resist the execution case.............I never find it to be fit case where I may invoke my inherent power.' Learned Munsiff was entirely justified to come to such a conclusion. Under the provisions of Section 151 of the Civil P. C., Court would interfere only for the ends of justice or to prevent the abuse of the process of the Court. None of these factors were present in the application of the judgment-debtor and the learned Munsiff rightly rejected the said application.

9. Moreover, High Court can only interfere with an order passed by the Subordinate Court if it is passed without jurisdiction or there is an ex facie mistake or the order is vitiated by any irregularity. An application was made under Section 151 of the Civil P. C. calling upon the Court to invoke its inherent jurisdiction for the ends of justice. The learned Munsiff did not think that the ends of justice in any way suffered in this case. On the contrary he held that the conduct of the judgment-debtor was such as to rule out any such plea from him and he dismissed the application. I do not find any ground to interfere with his order on the reasons stated above.

10. Hence, it is ordered, Application is rejected. Rule is discharged. Stay order is vacated. Records should go down immediately.


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