Sunday, 25 November 2018

Whether unlawful occupant can resist execution of eviction decree?

 The executing Court was completely justified in treating the appellant as having wrongfully trespassed into the decretal premises. It does not even appear that the appellant is, in fact, in possession of the decretal premises.

9. When a third party, who is apparently not bound by an eviction decree, comes to the executing Court with a petition to resist the implementation of the decree, such person has to demonstrate some modicum of right to the decretal premises. The appellant herein completely failed to discharge such obligation before the executing Court, whereupon the executing Court required the bailiff to proceed and throw out whoever was seeking to resist possession being taken over at the relevant part of the decretal premises.

IN THE HIGH COURT OF CALCUTTA

APO No. 539 of 2017 in EC No. 583 of 2013

Decided On: 30.07.2018

Subir Kumar Bose  Vs. Life Insurance Corporation of India

Hon'ble Judges/Coram:
Sanjib Banerjee and Abhijit Gangopadhyay, JJ.

Citation: AIR 2018(NOC) 909 Cal


1. The appeal is directed against an order, that is deemed to be a decree, passed on an application under Order XXI Rule 99 of the Code of Civil Procedure, 1908. By the order impugned dated December 1, 2015, the appellant's application has been rejected, primarily on the ground that the appellant could not establish any title to the tenanted premises in respect whereof an eviction decree has been passed.

2. In respect of the property at 9, Chowringhee Road which belongs to the Life Insurance Corporation of India, a suit was instituted in the year 1964 seeking eviction of, inter alia, Drs. Smith Brothers, a partnership firm, and several others who were in occupation of the said premises. A decree was passed in favour of LIC and against Drs. Smith Brothers against which an appeal was preferred, but it failed. When LIC put the decree into execution, an order was passed by the executing Court on August 28, 2014 permitting the judgment-debtor, Drs. Smith Brothers, to hand over peaceful and vacant possession of the property to decree-holder LIC within a period of two weeks from the date of such order. The relevant order also provided that in default of the judgment-debtor voluntarily making over possession of the decretal premises to the decree-holder, a bailiff would be appointed by the Court to take necessary steps.

3. An appeal was preferred from such order of August 28, 2014 in the name of Drs. Smith Brothers. The stay petition pertaining to such appeal was affirmed by a gentleman by the name of Samir Kumar Basu, who was the son of Late Sisir Kumar Basu. In the stay petition pertaining to the relevant appeal, Drs. Smith Brothers claimed that such firm was an association of dental surgeons which had been running a dental clinic at the first floor of 9, Chowringhee Road for nearly a century. The stay petition pertaining to the appeal acknowledged that Suit No. 1002 of 1964 was decreed in favour of LIC and against firm Drs. Smith Brothers on November 4, 1981 and the decree was affirmed in appeal on May 7, 2013.

4. The appellant herein claims to be in occupation of the suit premises for nearly 35 years and the following paragraphs of the petition under Order XXI Rule 99 of the Code are of some relevance in the present context:

"3. The applicant is the occupant, who has occupied the scheduled premises for over 35 years preceding hereto and since then, he is enjoying the suit premises exclusively, openly and adversely to the claim of the decree holder, for his commercial purposes.

"4. In or about 01st October, 1980, a partnership firm was incorporated and established at the sole initiative of the applicant herein under the trade name "M/s. SMITH BROS". The business agreed to be carried out by the said firm was in the nature of dental clinic - dental surgeon and accordingly, trade license was also issued in the aforesaid trade name in favour of the said firm, which has been renewed from time to time."

5. The executing Court found that no deed of partnership pertaining to M/s. Smith Brothers had been produced and the appellant herein had also failed to establish any right qua the decretal premises. It may not be out of place to notice here that a family of Basus was previously in control of the old firm Drs. Smith Bros and the present appellant, another Basu, claims to be the principal person in control of another partnership firm by the name of M/s. Smith Bros.

6. As to the title of the appellant in respect of the decretal premises, the appellant had claimed before the executing Court that the appellant was in adverse possession, without eliciting any evidence on how the appellant had entered into possession or on how the appellant herein had asserted hostile title in respect thereof. Indeed, the appellant chose not to carry the deed of 1980 by which the appellant allegedly entered into a partnership with one or more partners of erstwhile Drs. Smith Bros.

7. Though it was impermissible on the part of the appellant to have relied on any document in this appeal that was not before the executing Court, a copy of a partnership deed said to be of the year 2015 has been slipped in as part of the appeal papers. Apart from the fact that such deed, on the face of it, appears to have been executed subsequent to the decree, it appears that the family in possession of the decretal premises at the time that the decree was passed has tried to make an internal arrangement to give a false impression to this Court. The deed of 2015 refers to Ms. Sabita Basu, wife of late Dr. Samir Kumar Basu. The partnership is apparently between the appellant herein and Ms Sabita Basu. It is pertinent to note that Dr. Samir Kumar Basu was the person who had affirmed the affidavit in support of the stay petition in the appeal arising out of the order dated August 28, 2014 referred to hereinabove. Further, late Dr. Samir Kumar Basu and the appellant were brothers as they both indicated their father's name to be late Sisir Kumar Basu. It is, thus, plain to see that after the final decree was passed and such decree was affirmed in appeal, the family of Basus has sought to wrongfully resist eviction from the decretal premises by trying to create documents to assert rights that do not exist at all.

8. The executing Court was completely justified in treating the appellant as having wrongfully trespassed into the decretal premises. It does not even appear that the appellant is, in fact, in possession of the decretal premises.

9. When a third party, who is apparently not bound by an eviction decree, comes to the executing Court with a petition to resist the implementation of the decree, such person has to demonstrate some modicum of right to the decretal premises. The appellant herein completely failed to discharge such obligation before the executing Court, whereupon the executing Court required the bailiff to proceed and throw out whoever was seeking to resist possession being taken over at the relevant part of the decretal premises.

10. Drs. Smith Brothers had been inducted as a tenant in respect of the decretal premises. The appellant, at the highest, seeks to establish some rights in respect of the decretal premises through Drs. Smith Brothers. Once Drs. Smith Brothers is found to have suffered the eviction decree and the appellant herein has no independent legs to defend his alleged occupation of the decretal premises, the executing Court was duty-bound to implement the decree and make over possession of the decretal premises to the decree-holder.

11. A completely false case was brought by the appellant herein to the executing Court. The appellant has no manner of rights to claim to be entitled to possession of any part of the decretal premises. The appellant had no right to be issued any notice prior to or after the decree was passed. The appellant came to Court seeking to resist the implementation of the decree and has been caught out as a person without any right to occupy the decretal premises. In such circumstances, the appellant is liable to be thrown out from the decretal premises without further ado.

12. The appellant seeks to rely on a declaration or undertaking furnished by LIC by way of a memorandum of undertaking. Such undertaking referred to tenants, sub-tenants and unauthorised occupants at premises no. 9, Jawaharlal Nehru Road (erstwhile Chowrighee). The second paragraph of the undertaking indicated that LIC was to demolish the existing building and construct a new building at the same premises and LIC would be agreeable to make over the constructed space to such of the unauthorised occupants who would surrender possession in favour of LIC for LIC to begin the construction of the proposed building. According to the appellant, since the appellant is found by the impugned decree to be illegally in occupation of the decretal premises, the appellant should get the benefit of the undertaking furnished by LIC and be allotted some space in the building that is to come up.

13. It does not appear that the executing Court has actually held that the appellant is in possession of the decretal premises or any part thereof. In the order impugned, the executing Court has accepted the appellant's statement at face value without making any inquiries as to the appellant's alleged possession of the decretal premises. However, the executing Court has found, as a matter of fact, that the appellant herein had no right to any part of the decretal premises. There is nothing that the appellant can show which would detract from such conclusion as has been appropriately rendered by the executing Court.

14. For the reasons aforesaid, the order impugned dated December 1, 2015 does not call for any interference, particularly as the appellant herein has failed to show any modicum of right entitling the appellant to be in possession of any part of the decretal premises or be entitled to continue in occupation thereof in any manner or form. The order impugned is affirmed. It will be open to the executing Court to direct appropriate steps to be taken in accordance with law such that LIC gets immediate possession of the decretal premises, notwithstanding the resistance that the appellant herein may put up in such regard.

15. APO No. 539 of 2017 is dismissed with costs assessed at Rs. 2 lakh to be paid by the appellant to the LIC.

16. The appellant seeks a stay of the operation of this order which is unhesitatingly refused, particularly since the appellant shows no right to claim any title or to remain in possession of the decretal premises and further since there was no order in favour of the appellant at any stage for the appellant to continue in occupation, if at all, of any part of the decretal premises.

17. Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.


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