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Gaya Nath Ghose Vs. Amulya Chandra Sarkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1270 of 1956
Judge
Reported inAIR1957Cal252,61CWN164
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 97
AppellantGaya Nath Ghose
RespondentAmulya Chandra Sarkar and anr.
Appellant AdvocateBarun K. Roy Choudhury, Adv.
Respondent AdvocateSoudhendra K. Basu, Adv.
Cases Referred(Vide Minet v. Johnson
Excerpt:
- .....police help against (1) the judgment-debtor dinesh, (2) sukhendu and (3) his sister, sovarani. the decree-holder prayed for police help and in the alternative for detention of sukhendu and sovarani. notice was issued on the opposite parties to show cause. on the 24th april 1956, the petitioner gaya nath filed a petition stating that he was a sub-tenant, that he was impleaded as a party to the suit as a subtenant and that resistance was given by sukhendu and sovarani on his behalf and asked for time to file his objection. the learned trial judge rejected this petition of gaya nath, holding that he had no locus standi. he then passed the following order:'this case is allowed ex parte with costs. pleader's fee rs. 10/- only. prayer for police help ss allowed. police is written to. the.....
Judgment:
ORDER

Bachawat, J.

1. The dispute relates to one room, in the ground floor of premises No. 22/1A, Ram. Chand Ghose Lane, Calcutta, The plaintiff instituted a suit for ejectment against several persons. Defendant No. 1, Dinesh 'Chandra Ghose, who was admittedly the tenant under the plaintiff was the principal defendant. The plaintiff im-pleaded five other defendants, alleging that they were either sub-tenants or trespassers. The petitioner Gaya Nath Ghose was defendant No. 2. He filed a written statement and asserted that he was a sub-tenant. Defendant No. 3, Badal, defendant No. 4, Rakhal alias Sukhendu, defendant No. 5, Gouranga and defendant No. 6, Rat Mohan, asserted that they were not sub-tenants and had no interest in the premises. Defendants 2 to 6 contended that they were not necessary parties to the suit. On the 13th January 1956, the plaintiff filed a petition stating that defendants Nos. 2 to 6 had asserted a sub-tenancy in their favour In a previous criminal proceeding' and that the Question whether the sub-lease was legally binding on the plaintiff requires to be adjudicated in order that the plaintiff might obtain an effective decree for possession. The plaintiff, therefore, prayed that defendants Nos. 2 to 6 should be retained as parties. By the order dated the 13th January 1956 the learned Judge directed that the names of defendants Nos, 2 to 6 be struck out from the record holding that they were neither necessary nor proper parties. On the 3rd February 1958, the plaintiff obtained a decree for possession against defendant No. 1. On the 8th March 1956, on the application of the plaintiff, a writ of possession in Form No. 11, Appendix E of the Code of Civil' Procedure was issued. Delivery of possession un-der this writ was resisted. The bailiff's report shows that Sukhendu Kumar Ghose and his sister resisted execution.

2. By his petitions dated the 19th March 1946 and the 21st March 1956, the plaintiff applied for an order under Order 21, Rule 67 of the Code of Civil Procedure and for police help against (1) the judgment-debtor Dinesh, (2) Sukhendu and (3) his sister, Sovarani. The decree-holder prayed for police help and in the alternative for detention of Sukhendu and Sovarani. Notice was Issued on the opposite parties to show cause. On the 24th April 1956, the petitioner Gaya Nath filed a petition stating that he was a sub-tenant, that he was impleaded as a party to the suit as a subtenant and that resistance was given by Sukhendu and Sovarani on his behalf and asked for time to file his objection. The learned trial Judge rejected this petition of Gaya Nath, holding that he had no locus standi. He then passed the following order:

'This case is allowed ex parte with costs. Pleader's fee Rs. 10/- only. Prayer for police help Ss allowed. Police is written to. The decree-holder be put into possession.'

Gaya Nath moves this Court in revision against this order.

3. The application raises interesting questions with regard to the practice relating to the execution of a decree for recovery of possession of immovable property obtained by a landlord against a tenant and the scope of Rule 35 36 and 97 to 103 of Order 21 of the Civil Procedure Code.

4. Where the landlord decree-holder seeks to execute his decree for delivery of immovable property, he has to make up his mind whether he should ask for actual possession under Rule 35 (1) or symbolical possession under Rule 36 of Order 21 of the Civil Procedure Code, If he is prepared to say that the person in actual occupation is bound by the decree and has no right to remain in occupation of the property, he may proceed under R. 35 (1) and obtain a warrant of possession in Form No. 11 of Appendix E with a general direction to the bailiff to remove any person bound by the decree who refuses to vacate. If he is not prepared to say this, he has no business to ask for the assistance of the Court under Rule 35 (1). If the property is in the occupancy of some person who is entitled to occupy the same and is not bound by the decree to relinquish the occupancy the decree holder must proceed under Rule 36 and be content with an order of symbolical delivery of possession.

5. Under a warrant of possession Issued under Rule 35 (1) in Form No. 11 of Appendix E, only a person bound by the decree may be removed from the property.

6. A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree under Rule 35 (1). See -- 'Sailendra Nath Bhattacharjaya v. Bijan Lal Chakravarty : AIR1945Cal283 . On the other hand, a sub-tenant, who claims a statutory right to occupy the property independently of the tenant under the Rent Control laws, e, g., under Section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 or Section 11 (3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, is not a representative of a judgment-debtor and is not bound by the decree for ejectment and lie may not, therefore, be removed In execution ofa decree against the tenant. He is, therefore, entitled to resist execution of the warrant and if he is dispossessed he may apply under Rule 100 of Order 21 for restoration of possession (See -. 'S. N. Tala- patra v. Bengal Bonded Ware House' : AIR1953Cal598 (B) ). But he has no right to apply under Rule 97 of Order 21 for declaration of his right. (See - 'Sukhan Singh v. Baijnath Goenka', 12 Cal WN 115 (C) ). Section 11 (3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 or Section 13 (2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, gives him no right to intervene in the proceedings between the landlord and the ten- ant, (See - 'Thakurdas Pushparaj v. Dwarka Prasad', 87 Cal LJ 181 (D); and - 'Bnupesh Chan-dra Dutta v. Dr. M. N. Bose', : AIR1953Cal198 . He has no right to apply under S. 47 of the Civil Procedure Code for an adjudication of his rights and for a quia timet order restraining his removal and his remedy is to institute a separate suit for adjudication of his rights. (See - 'Nityananda Kapuria v. Parbati Nath Dutta', 58 Cal WN 407 (F); and - 'Khetra-mohan Manimohan Saha v. Parbati Nath Dutta', : AIR1955Cal295 . At the same time this Court has also held that Order 21 provides a complete procedure for the protection of his rights and that 'ordinarily he should adopt that procedure and not the procedure of a separate suit for such' protection and for injunction. - 'Narendra Krishna Bose v. Great Eastern Hotel : Ltd.', 68 CLJ 72 (sic1). See also - 'Rajani Kanta Das v. Dayal Chandra Das', : AIR1950Cal244 (H).

7. -If the execution of the warrant of possession is resisted and the decree-holder is prepared to say that the resistance is by the judgment-debtor or by some persons bound by the decree or at their instigation, he may apply under Rule 97 complaining of the resistance.

8. A proceeding under Rule 97 is an original miscellaneous proceeding in execution (Vide - 'Alagasundaram Pilial v. Pichuvier', ILR 52 Mad 899; (AIR 1929 Mad 757) (FB) (I). The lis is commenced by a petition of complaint. The peti-tioner is the decree-holder. The cause of complaint is resistance or obstruction to the execution of the warrant of possession by the bailiff-See Form No. 40, Appendix E of the Code of Civil Procedure; (Vide - 'Kironshoshi Dasi v. Official Assignee of Calcutta', ILR 60 Cal 8: (AIR 1933 Cal 246) (J) ). Only the decree-holder may apply under Rule 97 and he may do so within 30 days of the obstruction complained of. (See Article 167 of the Indian Limitation Act). A new obstruction to a nev/ warrant of possession gives rise to a fresh cause of complaint. (See Surama Sun-dari Debi v. Kiranshashi Chowdhurani : AIR1938Cal352 .

9. The parties to the proceeding are the decree holder and the opposite party against whom the application is made. The final order is conclusive and binds all parties to the proceeding sub- -ject to any suit which may be instituted under rule 103 within one year from the date of the order (See Article 11-A of the Indian Limitation Act).

10. The opposite party is entitled to be summoned & to show cause-Form No. 40 of Appendix E of the Civil Procedure Code, A separate petition by' the opposite party may and should be treated as an objection in the proceeding. (Vide : AIR1953Cal198 referred to above).

11. A stranger has no right to intervene and to be added as a party. Section 141 of the Civil Pro-cedure Code does not apply as the proceeding is a proceeding in execution. Order 1, rule 10 of the Code is not attracted.

12. On a petition under Order 21, rule 97, the decree holder may obtain an order that he be put in possession of the property. If he is still resisted by the party he may obtain a further order for the detention of such party in civil prison under rule 98 read with Form No. 41 of Appendix E. These orders do not bind persons who are not parties to the proceedings.

13. If the decree cannot be effectively executed without Police help the decree holder may apply to the Court for the grant of such help. An application for Police help is essentially different from an application under order 21 rule 97 though the two applications are often joined in one petition. This Court has framed special rules for dealing with applications for Police help (See Manual of the Court of Small Causes, Calcutta, Volume II, Part 4, Chapter IV, page 54, rules 137 and 137A to 137D; Civil Rules and Orders Volume I, page 80, rule 261; Original Side Rules Chapter 17, rules 14A to 14D).

14. An order for police help vitally effects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are likely to be evicted brevi manu from the property summarily. Belief by way of restoration of possession obtained by an application under Order 21, rule 100 is poor consolation for' a person who is unlawfully dispossessed. The Court should, therefore, proceed with great caution in granting police help. The Court should not hesitate to give such aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid. But where there is a bona fide claim by an occupant that he is not bound by the decree and as such is entitled to resist eviction in execution of the decree the Court may and should decline to give such aid until his claim is negatived in appropriate proceedings; See Debendra Nath v. Parul Bala : AIR1953Cal233 and Sew Sankar Lal v. Bejoy Krishna Dutta, : AIR1953Cal218 (M). The claimant is vitally affected by an order for Police help and is entitled to be heard on an application praying for such help. The Court has unfettered discretion and ample power to do justice. The Court may examine any person it thinks fit and hear him. If necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. The decree holder is under a duty to disclose full facts. An order for police help obtained improperly or by suppression of material facts is liable to be set aside. See Jagat Lakshmi Dasi v. Golam Hossain, 60 Cal WN 147 (N) Sew Sankar Lal v. Bejoy Krishna Dutta, : AIR1953Cal218 (M).

15. The English practice with regard to an action for recovery of possession and the issue of a writ of possession is materially different but it may usefully be noted and compared. A person not a party to such an action may apply to be added as a party. (See R.S.C. Order 12 rule 25). The plaintiff is entitled to judgment in default of appearance. (See R.S.C. Order 13, rule 8). The Court has unfettered power to set aside the judgment. (See R.S.C. Order 13, rule 10, Order 27, rule 15.) The decree for recovery of possession is enforced by leave of the Court by a writ of possession after due notice to all persons who are likely to be affected. (See R.S.C. Order 47). The writ is in Form 8, Appendix H to the rules of the SupremeCourt and it commands the bailiff to enter on the land and cause the plaintiff to have possession. On the application of a person in possession of a property who was not made a party to the action for its recovery and who being unaware of the action could not apply to be made a party earlier, the judgment in the action and all subsequent proceedings Including the writ of possession may be set aside so far as it concerns him on his electing to be added as a defendant to the action. (Vide Minet v. Johnson (1890) 63 LT 507 (O) ).

16. The fac'ts of this case are simple enough. In the plaint and the petition dated the 13th January 1956, the decree holder admitted that the petitioner was a sub-tenant and that no effective decree for ejectment could be passed in his absence. In his written statement, the petitioner as-serted that he was a sub-tenant. On the face of the record, there is the bona fide contention that the petitioner is a sub-tenant and that he is not bound by the decree for ejectment. If in fact the petitioner is not a sub-tenant, the decree holder -was ill-advised to ask for a warrant of possession in Form No. 11 of Appendix E. The decree holder acted illegally in not disclosing these facts in his petition praying for police help and for an order under Order 21, rule 98.

The court acted illegally in passing an order for police help without considering the facts appearing on the face of the record and in refusing to hear the petitioner on the question whether police help should or should not be granted. The order for police help is clearly illegal and must be set aside at the instance of the petitioner who is vitally affected by the order. The remaining part of the order passed under order 21 rule 97 against the opposite parties to the decree-holder's petition, namely, Dinesh, Sukhendu and Sovarani cannot be set aside. Those opposite parties did not appear before the learned Judge. They have also not moved 'this Court in revision against the order. The order against them will, however, in noway bind the petitioner.

17. I pass the following order:

18. The order dated the 24th April 1956 so. far as it allows the prayer for police help is set aside. It is declared that the rest of the order dated the 24th April 1956 does not bind the petitioner in any way. The petitioner is entitled to the costs of this Rule from the opposite party No. 1, Amulya Chandra Sarkar.

19. The Rule is disposed of accordingly.


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