RAJENDRA AGARWAL Vs. BHANUBALA BHABANI

JUDGEMENT

(1.) Let C.A.N. No. 4877 of 2010 in CO. No. 2848 of 2009 be treated as on day's list. This application has been filed for deleting the name of Bhanubala Bhabani who has expired. As submitted by the learned Advocates of the parties since the heirs of Bhanubala Bhabani are already on record no further order need be passed for putting the heirs of Bhanubala Bhabani on record. Therefore, no order is passed on the application being C.A.N. No. 4877 of 2010. The application is disposed of.

(2.) In this revisional application the petitioner has challenged the order No. 13 dated 22nd July, 2009 passed by the learned Chief Judge, Small Causes Court at Calcutta in Misc. Case No. 27 of 2009 arising out of Ejectment Execution Case No. 150 of 2008 mainly on the ground that the learned Judge while passing the order failed and neglected to consider the fact that the misc. case filed by the decree holders is not maintainable in the absence of original judgment-debtor, since they are the very much necessary parties in the instant execution case as police help has been sought by the decree holders/landlords.

(3.) I find after perusing the application, under Order 21 Rule 97 and the . application under section 151 of the Code of Civil Procedure, the learned Judge had dismissed the application under section 151 of the Code. In my view, impugned order passed by the learned Judge calls for no interference in view of the law laid down in paragraph 5 of the judgment in Ajit Kumar Ray relied on by the petitioner, which is as under: "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 obstruction made by any person. It does not specify the judgment-debtor alone to be the resistor. 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."