Order 21 Rule 25 of the CPC provides for endorsement by
the officer entrusted with the execution that if he is unable to
execute the process, the court shall examine the reasons for the
alleged inability and pass appropriate orders. No report was
submitted by the bailiff asking for police assistance in execution
for reasons specified. Likewise, there is no report under Order 21
Rule 35(3) CPC requesting for police assistance for effectuating
delivery of possession. There is no material if the application
before the Tehsildar was made by the bailiff or the decree holder.
Be that as it may, we are constrained to hold that the procedure
adopted by the police with regard to the delivery of possession by
resorting to a manner outside the procedure of the court, using
the court orders as an umbrella was wholly unwarranted. The
executive authorities were completely unjustified in their over
enthusiasm without asking for proper court orders regarding
police assistance despite the fact that they were fully aware that
possession was to be delivered in pursuance of a court order.NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO(s).8175 OF 2019
OM PARKASH Vs AMAR SINGH
Leave granted.
2. The appellantOm
Parkash is the decree holder aggrieved by
the order of the High court holding that the delivery of the suit
property to him in the execution proceedings by use of police
force, was vitiated in law as no orders had been obtained from
the Court for such police assistance. Judgment debtor Amar
Singh has been directed to be put back in possession through the
bailiff. The execution proceedings closed on 11.10.2013 after
delivery of possession, has been revived. The entitlement to
possession has been left to be decided afresh in the revived
execution proceedings. The parties shall hereinafter be referred
to as decree holder and judgment debtor respectively for
convenience.
3. The controversy for our determination in the present appeal
as addressed by learned counsel for the parties is extremely
limited. Whether delivery of possession to the decree holder with
police assistance was vitiated in absence of any orders by the
Court for providing such police assistance?
4. Learned counsel for the decree holder Shri Gagan Gupta
submitted that the High Court has erred in holding that the
decree holder had resorted to unlawful and illegal methods for
execution of the decree for possession. The decree holder had
never made any request for deployment of police force for
execution. The Tehsildar himself being apprehensive of law and
order problems during delivery of possession to the decree holder,
had suo moto sought police assistance from the District
Magistrate and in pursuance of which the Commissioner of Police
had directed the deployment. The Deputy Commissioner had
instructed the Tehsildar to send compliance report to the court
directly. In consequence, possession was delivered on
11.10.2013. The executing court accepted the report regarding
delivery of possession and closed the execution proceedings. The
decree holder had purchased the suit lands in a court auction
sale dated 27.03.1990. Sale certificate was issued in his favour
on 27.04.1998 and registration completed on 30.04.1998. After a
protracted battle at the instance of the judgment debtor Amar
Singh, delivery of possession had been effected. The decree
holder has remained in possession by virtue of the order of status
quo passed by this court on 05.02.2014.
5. Shri Rakesh Kumar Khanna, learned senior counsel
appearing for judgment debtor, submitted that the anxiety
expressed by the High Court in the impugned order is fully
justified and calls for no interference. In an execution proceeding,
resort to use of police force for effecting delivery of possession
without obtaining appropriate orders from the executing court in
that regard is a practice fraught with danger. A decree holder
cannot be permitted to resort to procedures contrary to the law to
take forcible possession by sheer use of police force merely
because he has a Decree in his favour. Such an act amounts to
subverting the law and misusing the process of law and courts. A
litigant cannot be permitted to abuse the process of law and must
pay the price by redelivery of possession. Repeated judicial
pronouncements have held that in this country, possession can
be taken even by a lawful owner only in accordance with law and
if dispossession is contrary to law, the person evicted has to be
put back in possession till he is duly evicted in accordance with
law.
6. We have been carefully taken through the materials on
record and have also heard the counsel for the parties at length.
Though the nature of the controversy before us is extremely
limited, a brief recapitulation of facts will be necessary to put
matters in its proper perspective for better appreciation.
7. The judgment debtor claimed to be a purchaser of the suit
property by a sale deed dated 13.02.1973. His writ petition
challenging the acquisition proceedings under Section 4 of the
Land Acquisition Act, 1894 dated 10.12.1973, after publication of
the award, was dismissed on 10.04.1989. The acquired lands
became the subject of recovery proceedings with regard to a claim
for compensation by another whose lands were also acquired but
compensation was not paid. The decree holder was the
successful bidder in a court auction held on 27.03.1990. The
auction sale was confirmed on 17.03.1997, sale certificate was
issued in his favour and the sale deed registered on 30.04.1998.
The decree holder then applied for delivery of possession in an
execution proceeding dated 19.09.1998. At this stage, judgment
debtor filed Civil Suit No.236 of 1998 seeking permanent
injunction against dispossession from the suit lands. Objections
were also filed by judgment debtor under Order 21, Rules 97 &
99 of the Code of Civil Procedure (hereinafter called “the CPC”) in
the execution proceedings instituted by the decree holder. On
20.10.1999, the execution proceedings were dismissed as being
barred by time with liberty to file a substantive civil suit for
possession. The decree holder then filed a fresh suit for
possession on 11.01.2000. The judgment debtor had filed a
Miscellaneous Application in the execution proceedings to
restrain his dispossession from the suit lands. The decree holder
had preferred Civil Revision No. 4348 of 2006 against the same
before the High Court which culminated in a Civil Appeal No.
1637 of 2011 before this Court by judgment debtor. On
14.02.2011, the Civil Appeal was disposed of granting status quo
till disposal of the proceedings pending before the High Court. A
contempt petition has also been filed arising from the same. In
view of the fact that the proceedings before the High Court had
itself been disposed of, in our opinion nothing survives in the
contempt petition.
8. The Civil Suit filed by the decree holder for possession and
the suit filed by the judgment debtor for injunction, were heard
together. The suit by the decree holder was decreed and the suit
by the judgment debtor was dismissed. The first appeal preferred
by the judgment debtor was dismissed on 10.04.1989.
Thereafter, he preferred a regular second appeal only in the year
2019 and which is stated to be pending before the High court.
9. The decree holder then filed fresh execution proceedings on
26.05.2012. The objections filed by judgment debtor to the
execution proceedings were dismissed on 10.04.2013 and the
appeal preferred him has also been rejected on 12.04.2017.
10. At this stage, it may only be noticed that after dismissal of
his writ petition on 10.04.1989 challenging the land acquisition
proceedings, judgment debtor had filed an application under
Order 7 Rule 11 CPC for rejection of the suit for possession filed
by the decree holder. The application was rejected. Civil Revision
No. 4522 of 2009 preferred by judgment debtor was also
dismissed by the High Court holding that the lands had already
vested in the State pursuant to acquisition and that judgment
debtor had no subsisting right, title or interest in the suit lands.
The order of status quo in Civil Appeal No.1637 of 2011 arose
from the execution proceedings levied on 27.03.1990 by another
claimant who had not been paid compensation for acquired lands
and for which reason the suit lands were attached as ownership
stood vested in the State by virtue of acquisition. Once the suit
property was auction sold in the said execution proceedings and
it came to an end, the order of status quo loses much of its
significance. In any event the appellant instituted fresh execution
proceedings on 26.05.2012. It will, thus, be seen that
notwithstanding the decree in his favour, the decree holder has
since long been prevented and stalled by the judgment debtor
from obtaining possession in execution proceedings.
11. Warrant for possession was issued on 13.03.2013, which
could not be executed. Fresh warrants for possession were
issued on 10.05.2013 which also could not be executed.
Consequently, fresh warrants were again issued for 19.07.2013
which were followed by fresh warrants returnable on 27.08.2013.
In the meantime, the Tehsildar on 09.05.2013 wrote to the
District Magistrate requesting for police help as he apprehended
trouble at the time of delivery of possession. There is no material
to conclude that it was done at the behest of the decree holder.
The delivery warrants issued on 27.08.2013 was made returnable
on 05.10.2013. The authorities were nonetheless proceeding on
basis of the earlier delivery warrants. The request for police help
by the Tehsildar was then routed through the SubDivisional
Magistrate, the District Magistrate, the Deputy Commissioner
and the Commissioner of Police. Possession was delivered in
presence of the police on 11.10.2013. The delivery of possession
proceedings records that there had been some obstruction during
the process which was also video graphed but ultimately in view
of the police presence matters were pacified. The warrants
recording delivery of possession were returned back to the court
leading to the closing of execution proceedings on 11.10.2013.
12. The judgment debtor was well aware that the lands had
already vested in the State pursuant to the land acquisition
proceedings. His challenge to the same had been unsuccessful.
His suit had as also the First Appeal had been dismissed. His
objections in the execution proceedings were also rejected. He
therefore had no authority or right to remain in possession of suit
lands and was required to vacate the premises. In the
circumstances, it cannot be said that the apprehensions
expressed by the authorities at the time of delivery of possession
was malafide or wholly unwarranted. The present is not a case
where the judgment debtor has been forcibly ousted from the suit
lands by use of brute police power without any orders in court
proceedings.
13. Order 21 Rule 25 of the CPC provides for endorsement by
the officer entrusted with the execution that if he is unable to
execute the process, the court shall examine the reasons for the
alleged inability and pass appropriate orders. No report was
submitted by the bailiff asking for police assistance in execution
for reasons specified. Likewise, there is no report under Order 21
Rule 35(3) CPC requesting for police assistance for effectuating
delivery of possession. There is no material if the application
before the Tehsildar was made by the bailiff or the decree holder.
Be that as it may, we are constrained to hold that the procedure
adopted by the police with regard to the delivery of possession by
resorting to a manner outside the procedure of the court, using
the court orders as an umbrella was wholly unwarranted. The
executive authorities were completely unjustified in their over
enthusiasm without asking for proper court orders regarding
police assistance despite the fact that they were fully aware that
possession was to be delivered in pursuance of a court order. At
this belated point of time, we are not inclined or persuaded to
order further enquiry into that aspect of the matter. The anxiety
expressed by the High Court cannot be said to be unfounded or
without substance. We fully endorse the anguish of the High
Court, but in the peculiar facts and circumstances of the present
case, the apparent absence of the semblance of any right, title or
interest in the judgment debtor to be on the lands in question, in
exercise of our discretionary jurisdiction decline to interfere with
the order dated 11.10.2013 recording delivery of possession.
This order is being passed in the peculiar facts of the present
case. We may not be understood to have pardoned or overlooked
the executive authorities for the manner in which they have acted
and any misadventure in future without appropriate orders of a
court will be obviously at their own risks, costs and
consequences.
14. We, therefore, set aside that part of the order of the High
Court by which possession has been directed to be redelivered to
judgment debtor, and the execution proceedings have been
revived for fresh delivery of possession to the decree holder. With
that modification of the impugned order, the appeals and
contempt petition stand disposed of.
.………………………. J.
(Navin Sinha)
………………………. J.
(B.R. Gavai)
New Delhi,
October 21, 2019
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