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Mrs. Ajit Kumar Ray Vs. Jnanendra Nath Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2253 of 1974
Judge
Reported inAIR1975Cal433
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rules 97 and 98; ;Calcutta High Court Civil Rules - Rule 208; ;Calcutta High Court Civil Orders
AppellantMrs. Ajit Kumar Ray
RespondentJnanendra Nath Dey and ors.
Appellant AdvocateBarun Kumar Roy Chowdhury, Adv.
Respondent AdvocateAmarendra Narayan Bagchi, Adv.
DispositionRevision allowed
Excerpt:
- .....for police help at the time of delivery of possession by the court's bailiff as prayed for by the decree-holders jnanedra nath dey and others, the opposite parties before this court.2. the relevant facts to be stated in brief are simple. the decree-holder-petitioners obtained a decree for eviction against the judgment debtor ajit kumar roy in respect of the suit no. 8 at premises no. 79/28, lower circular road, calcutta. the decree in question was put in execution. according to the allegation of the decree-holders, on 22-6-72 the bailiff of the court accompanied by one of the decree-holders, amal kumar dey, went to the suit premises for effecting delivery of possession. one lady representing herself to be the wife of the judgment-debtor stated that the judgment-debtor was absent and on.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This revisional applicationhas been filed by one Mrs. Ajit Kumar Roy, the alleged resister, in execution case of a decree for recovery of khas possession of the suit premises against the order dated 20-4-74 passed by the 9th Bench of the City Civil Court, Calcutta, in Miscellaneous Case No. 553 of 1972 allowing a prayer for police help at the time of delivery of possession by the court's bailiff as prayed for by the decree-holders Jnanedra Nath Dey and others, the opposite parties before this Court.

2. The relevant facts to be stated in brief are simple. The decree-holder-petitioners obtained a decree for eviction against the judgment debtor Ajit Kumar Roy in respect of the Suit No. 8 at premises No. 79/28, Lower Circular Road, Calcutta. The decree in question was put in execution. According to the allegation of the decree-holders, on 22-6-72 the bailiff of the court accompanied by one of the decree-holders, Amal Kumar Dey, went to the suit premises for effecting delivery of possession. One lady representing herself to be the wife of the judgment-debtor stated that the judgment-debtor was absent and on hearing the contents of the writ for delivery of possession refused to comply with the direction in the writ and offered resistance and obstructed the bailiff in the matter of delivery of possession. It is alleged that the bailiff apprehending breach of peace had to come back without executing the decree. Thereafter, an application was filed in court by the decree-holders under Order 21, Rules 35, 97 and 98 of the Code of Civil Procedure. It was stated in the petition further that Mrs. Ajit Kumar Roy had no right to offer resistance to the bailiff in executing the writ for delivery of possession and that it was very much necessary to pass an order for police help at the time of execution of the writ for delivery of possession. In that application Mrs. Ajit Kumar Roy was made the opposite party. A notice was served upon Mrs. Roy after the application was registered as Miscellaneous Case No. 553 of 1972. Mrs. Roy appeared and ultimately filed objection. On the date when the matter came up for ultimate hearing there was a prayer for adjournment from the side of Mrs. Roy and it was refused. The matter was, therefore, heard ex parte. The learned Judgeof the City Civil Court on perusal of the petition supported by affidavit found that the decree-holders obtained a decree against the judgment-debtor Mr. Ajit Kumar Roy in respect of the Suit No. 8 as already stated and that on 22-6-72 when the court's bailiff went to take delivery of possession in execution of the decree the said judgment-debtor, Mr. Roy refused to deliver vacant possession and resisted the bailiff so that he could not enter into the suit premises for giving delivery of possession. The learned Judge accepted the allegations about resistance made in the petition on the ground that the judgment-debtor did not adduce any evidence to deny resistance. Ultimately, the learned Judge allowed the application and passed orders for police help for the delivery of vacant possession of the suit premises. Against this order the instant revisional application has been filed.

3. I have heard Mr. Roy Chowdhury the learned Advocate appearing on behalf of the petitioner and Mr. Bagchi for the decree-holders-opposite parties.

4. Mr. Roy Chowdhury first contended that the order of the learned Judge is bad because in the Miscellaneous Case started upon the application under Order 21. Rule 97 for police help the judgment-debtor was not a party. Secondly, it has been urged by Mr. Roy Chowdhury that in a case for police help the learned Judge ought to have followed the provisions contained in Rule 208 of the Civil Rules and Orders framed by this High Court for the guidance of the Subordinate Courts. His grievance is that the learned Judge did not follow the mandatory provision indicated in that rule. Lastly, Mr. Roy Chowdhury's contention is that the learned Judge below did not apply his mind to the facts and circumstances as also to the allegations made by the petitioner-decree holders and that his decisions are without any material or basis.

5. With regard to the first question whether the judgment-debtor should be made a party or not it depends, in my view, upon the allegations made by the decree-holders on the question of resistance or obstruction as the case may be. Rule 97 of Order 21 of the Code of Civil Procedure says that where the decree-holder for possession of immovable property, as in the present case, is resisted or obstructed by any person in obtaining possession of the property he may make an application complaining about such resistance or obstruction. According to Sub-rule (2) on receipt of such application the court shall fix a date for investigating the matter and shall summon the party against whom the application is made, to appear and answer the same. Rule 97 speaks about resistance or obstructionmade by any person. It does not specify the judgment-debtor alone to be the re-sister. The elementary principles of natural justice is that whenever any allegation is made against a particular person or persons it is the duty of the court to give an opportunity to that person or persons to be heard about the allegations made. There may be cases where the decree-holder makes some allegations against a third party without reference to the judgment-debtor. In that case, I think, it is not necessary for the court to call upon the judgment-debtor to answer or to show cause against the allegations made against the third party. The third party is the proper person to be impleaded in the proceedings so that he may get an opportunity to be heard. There may also be cases where the allegation is that the third party at the instance of the judgment-debtor or with his connivance made the obstruction. In that case not only the third party but also the judgment-debtor should be made parties and be given information about the allegations and opportunity to place their cases. Therefore, in my view, as already indicated, it cannot be universally stated that in all cases of allegations of obstruction the judgment-debtor must be made a party.

6. In the present case, the decree-holders' allegation is that Mrs. Roy offered resistance and obstructions to the bailiff in the matter of execution of the writ of delivery of possession. In paragraph 6 of the application it has been further stated that the opposite party has been set up by the defendant judgment-debtor to illegally and wrongfully deprive the decree-holders of enjoying the benefits of the decree. It has been also stated in paragraph 5 that at the instigation of the judgment-debtor Mrs. Roy, his wife, without any just cause offered obstruction and resistance. On the very face of the allegations there can be no doubt whatsoever that the judgment-debtor should have been given notice about the application of the decree-holders giving him an opportunity to submit proper reply. But here Mr. Roy Chowdhury does not represent the judgment-debtor. Mrs. Roy can have no grievance for non-ioinder of the judgment-debtor. She could have relied on her own case and statement made in the petition of objection This ground of non-joinder of judgment-debtor would have been a good defence from the side of the judgment-debtor himself. However, in the present facts and circumstances. I do not think that the petitioner before me can have any grievance for the nonjoinder of the judgment-debtor. Of course, even in the absence of any representation from the judgment-debtor it was the duty of the learned Judge below to make the judgment-debtor a party and a noticeshould have been served upon him for proper adjudication of the dispute. However, in view of my discussion above, I do not think that the petitioner can have any assistance from the non-joinder of the judgment-debtor in the Miscellaneous Case.

7. The next contention of Mr. Roy Chowdhury is that in view of Rule 208 of the Civil Rules and Orders framed by this Court, the order passed by the learned Judge was illegal and without jurisdiction as the mandatory provision contained therein has not been followed. The relevant portion of Rule 208 namely, Sub-rule (1) says that if any decree-holder prays for police help in execution of a decree, he shall state in his application the full reasons thereof supported, if required, by an affidavit. The court after the submission of that application in spite of the affidavit filed by the decree-holder may further examine the decree-holder or such other person as it thinks fit for coming to a decision as to whether or not there is any necessity for police help. Upon consideration of all the facts and circumstances when the court will be clearly of opinion that unless police help is given the execution will not be effected without serious danger to the public peace, he will then record his reasons for allowing such police help and request the police authority for extending help at the time of execution of the decree. It has been made quite clear that only in case of grave situation this extreme step should be taken by the court. This provision contained in 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. This application for police help is a discretionary matter to the learned judicial officer who deals with it.

8. In this connexion Rule 98 of Order 21 of the Code of Civil Procedure should also be noted. There is no doubt that Rules 97, 98 and 99 are to be read collectively. Upon the filing of an application under Rule 9T and upon hearing the parties and considering the materials before it when the court is satisfied that there was resistance or obstruction without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, according to the Calcutta Amendment, it shall direct that the decree-holder be put into possession of the property. But in spite of the direction, if the decree-holder still resisted or obstructed then according to Rule 98 of Order 21, C. P. Code the person resisting or obstructing may be detained in civil prison as indicated therein. This is theordinary procedure in case of obstructionor resistance by the judgment-debtor or any other person as contained in Rules 97 and 98. 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, C. P. Code or separately without filing such application or before any specific obstruction made by a particular person. There may be cases where the decree-holder may pray for police help due to the general disturbance in the locality for which execution without police help cannot be possible. Then without filing any application under Rule 97 of Order 21 an application may be filed direct before the court for police help. There may be cases where in spite of repeated obstruction by the judgment-debtor or any person at his instance the decree-holder cannot get possession, tout the court's bailiff or the decree-holder faces serious breach of peace or personal danger at the time of execution of the decree. In that case also the court will consider whether police help will be essential for the execution of the court's decree to see that such decree is respected and executed. However, in the present case before me. I do not find any allegation made by the decree-holder that there was any serious breach of peace or apprehension of danger to the person of the decree-holder or the court's bailiff at the time of execution. Courts should remember that they should not readily grant police help whenever there would be any application for such relief. As clearly stated earlier only in case of grave situation or in cases where for the execution of the decree police help is essential such prayer should be granted. In the instant case undoubtedly no such case has been made out by the decree-holder.

9. The last contention of Mr. Roy Chowdhury is that the learned Judge of the City Civil Court did not apply his mind to the allegations made in the petition of the decree-holder- He has drawn my attention to the finding of the court, The finding is that at the time when the court's bailiff went to the premises for execution of the writ for delivery of possession the judgment-debtor Mrs. Roy made obstructions. 'Mrs. Roy' is not a slip of pen. The very order indicates that from the start to the finish, the learned Judge had the impression that Mrs. Roy was the judgment-debtor and that she resisted the execution. There can be no doubt, therefore, that the learned Judge did not apply his mind at least to see who the actual resister was. According to the decree-holders, the wife of the judgment-debtor was the resister but the learned Judge found that the wife of the judgment-debtor was the judgment-debtorherself. Mr. Roy Chowdhury's contention is no doubt acceptable specially in view of the fact that there is no reason given in the order that there was any grave situation created by the resister or that the police help was very much necessary.

10. In view of my findings above, this revisional application must succeed. I hereby, set aside the order of the learned Judge below passed on 20-4-74. The Rule is thus made absolute but without costs in the circumstances of this case.

11. Send down the records to the lower Court as quickly as possible and the learned Judge will proceed according to Law with the execution case.


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