Sunday, 31 March 2019

Precaution to be taken by court while granting police aid for execution of decree

 In the said decision it has been further held that an order of 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 from the property summarily, the Court should therefore proceed with great caution in granting Police help. The paragraph 14 of the said reported decision being relevant is quoted below.

"(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. Relief 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 negative in appropriate proceedings; See Debendra Nath v. Parul Bala, MANU/WB/0082/1953 : 88 Cat LJ 105 at pp. 106, 107 : (AIR 1953 Cal 233 at p. 233) (L) and Sew Sankar Lal v. Bejoy Krishna Dutta, MANU/WB/0074/1953 : 57 Cal WN 65 at p. 66: (AIR 1953 Cal 218 at pp. 218, 219) (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. 

IN THE HIGH COURT OF CALCUTTA

C.O. No. 199 of 2018

Decided On: 06.09.2018

 Reba Mondal Vs.  Sandhya Paul and Ors.

Hon'ble Judges/Coram:
Biswajit Basu, J.

Citation: AIR 2019(NOC)61 Cal


1. The revisional application under Article 227 of the Constitution of India at the instant of the plaintiff/decree holder in a suit for Ejectment and is directed against the order No. 110 dated December 08, 2017 passed by the learned Judge, Sixth Bench, Presidency Small Causes Court at Calcutta, in Miscellaneous Case No. 40 of 2016 arising out of Ejectment Execution Case No. 191 of 2006.

2. The petitioner being the plaintiff filed a suit for eviction of the opposite party No. 1 from the suit property inter-alia on the grounds of default, subletting and violation of the Clauses (m), (o) and (p) of the Section 108 of the Transfer of Property Act, 1882. The said suit was decreed ex-parte. The opposite party No. 1 for setting aside the said ex-parte decree initiated a proceeding under Order 9 rule 13 of the Code of Civil Procedure alongwith an application for condonation of delay in initiating the said proceeding. The learned Trial Judge dismissed the said application of the opposite party seeking condonation of delay. The opposite party unsuccessfully challenged the said order up to this Court.

3. The plaintiff/petitioner put the decree into execution which gives rise to Ejectment Execution Case No. 191 of 2006. The plaintiff/petitioner in the said execution case filed an application under Order 21 Rule 97 read with Section 151 of the Code and under Rule 208 of the Civil Rules and Orders for Police help to execute the decree. The said application was registered before the executing Court as Miscellaneous Case No. 40 of 2016.

4. The learned Trial Judge dismissed the said Miscellaneous Case by the order impugned holding inter-alia that the petitioner has failed to prove that the seal Bailiff was resisted specially when the petitioner herself admitted that she does not have any allegation against the objector.

5. Mr. Hiranmoy Bhattacharyay, learned Advocate appearing on behalf of the petitioner contends that the learned Trial Judge has failed to appreciate that if there was no resistance from the side of the judgment debtor there would not have been any difficulty for the Bailiff to deliver the peaceful possession of the suit property to the decree holder in execution of the decree. He by referring to the cross-examination of the judgment debtor dated July 13, 2017 further submits that the judgment debtor in her cross-examination has admitted that even if the Bailiff had been to the decreetal premises she would not have delivered the vacant possession. He submits that the said assertion of the judgment debtor itself demonstrates the resistance.

6. Mr. Souradipta Banerjee, learned Advocate appearing for the opposite party No. 1 on the other hand disputes the aforesaid submission of Mr. Bhattachrayay and contends that from the records it will appear that the seal Bailiff was never been in the suit property, therefore, there is no question of resistance. He by referring to the cross-examination of the husband of the decree holder, who was cited as P.W. 1 in the Miscellaneous Case contends that the said witness admits that the Bailiff did not prepare the report in the decreetal property. He further submits that the Bailiff has admitted in her evidence that he has not identified the suit property. He further adds that when the P.W. 1 himself has stated in his evidence that he has no allegation against Shefali Das, the alleged objector, the learned Trial Judge has rightly rejected the said application of the petitioner for Police help to execute the decree. Mr. Banerjee relying on the case of Mr. Ajit Kumar Ray v. Jnanendra Nath Dey and Others, reported in MANU/WB/0092/1975 : AIR 1975 (Cal) - 433, submits that Police help will not be granted readily and Rule 208 of the Civil Rules and Orders can be used only in exceptional cases.

7. Heard the learned Advocates for the parties and perused the materials on record. The plaintiff/decree holder although has filed the application for Police help under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure and under Rule 208 of the Civil Rules and Orders but the said application is essentially an application under Rule 208 of the Civil Rules and Orders as it has been held in the case of Gaya Nath Ghosh v. Amulya Chandra Sarkar and another, reported in MANU/WB/0079/1957 : AIR 1957 (Cal) - 252 that an application for Police help is essentially different from an application for Order 21 Rule 97 of the Code of the Civil Procedure though the two applications are often joined in one petition. In the said decision it has been further held that an order of 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 from the property summarily, the Court should therefore proceed with great caution in granting Police help. The paragraph 14 of the said reported decision being relevant is quoted below.

"(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. Relief 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 negative in appropriate proceedings; See Debendra Nath v. Parul Bala, MANU/WB/0082/1953 : 88 Cat LJ 105 at pp. 106, 107 : (AIR 1953 Cal 233 at p. 233) (L) and Sew Sankar Lal v. Bejoy Krishna Dutta, MANU/WB/0074/1953 : 57 Cal WN 65 at p. 66: (AIR 1953 Cal 218 at pp. 218, 219) (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, MANU/WB/0336/1955 : 60 Cal WN 147 (N) Sew Sankar Lal v. Bejoy Krishna Dutta, MANU/WB/0074/1953 : 57 Cal WN 65 : (AIR 1953 Cal 218) (M)"
8. The decision relied on by Mr. Banerjee reported in MANU/WB/0092/1975 : AIR 1975 (Cal) 433, (supra) is also relevant in the facts and circumstances of the present case. In the said decision it has been held that Rule 208 of the Civil Rules and Orders can only be used to grant Police help for the purpose of execution of decree in an exceptional case. Paragraph No. 8 of the said reported decision being relevant to the present context is quoted below.

"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 97 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 obstruction may be detained in civil prison as indicated therein. This is the ordinary procedure in case of obstruction or 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, but 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. In the present case there is no evidence on record to show that the Court bailiff tried to execute the decree but failed due to resistance and the resistance was of such magnitude, the decree if sought to be executed there will be danger to the public peace.

10. In view of the facts and circumstances of the present case and the position of law as discussed above the order impugned does not call for any interference.

11. C.O. No. 199 of 2018 is dismissed. There will be however no order as to costs.

Urgent photostat certified copy of this order, if applied for be supplied, to the parties subject to compliance of all requisite formalities.


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