SATYAJIT GUHA Vs. SRIMATI RATI SEN SHARMA

JUDGEMENT

(1.) This revisional application is directed against the order No. 58 dated 11.3.2002 passed by Shri S. Neyogi, learned Civil Judge, Senior Division, second Court, Hooghly in connection with Miscellaneous Case No. 1 of 2002 refusing to review the order No. 50 dated 7.12.2001 passed by him which arose in connection with Title Execution case No. 2 of 1997. The said Title Execution case arose out of Title Suit No. 61 of 1990.

(2.) A Title Suit being No. 61 of 1990 was filed before the learned Assistant District Judge, Hooghly who after hearing the parties passed the decree of eviction directing the petitioner/applicant to deliver clear, vacant and khas possession of the suit premises within 30.9.1996. The learned Judge also passed the decree of mesne profit. Being aggrieved by the said judgment and decree the petitioner preferred an appeal before the learned District Judge, Hooghly which as registered as Title Appeal No. 215 of 1996. In the said appeal the plaintiff/decree-holder/opposite party filed an application under Order 21 Rule 11 of the Code of Civil Procedure for executing the decree. Thereafter the plaintiff/decree-holder filed an application under Rule 208 of the Civil Rules and Orders in the Title Execution Case No. 2 of 1997 which was pending before the trial Court. In the said Executive Case and Bidhan Bhattacharjee deposed as PW1 wherein it was stated that the plaintiff/decree-holder is his wife. After considering the evidence the Execution Court allowed the prayer for police help under Rule 208 of the Civil Rules and Orders, although the plaintiff/decree-holder did not file any application under Order 21 Rule 97 of the Code of Civil Procedure before filing the application under Rule 208 of the Civil Rules and Orders. By virtue of that order the said Bidhan Bhattacharjee along with the police official went to the suit premises and granted 3 days time to the defendant family on their request for bringing stay order from the Court of the Additional District Judge, First Court, Hooghly who was in session of Title Appeal No. 215 of 1996. Thereafter on 19.6.1998 the learned Additional District Judge passed a stay order whereby all further proceedings in Title Execution case No. 2 of 1997 were stayed and the learned Executing Court recalled the writ for delivery of possession. Ultimately the learned Additional District Judge was pleased to dismiss the appeal affirming the judgment and decree passed by the trial Court. Thereafter the defendant preferred a second appeal in the High Court and the same was registered as SAT No. 193 of 2001. The said second appeal was also dismissed by the Hon'ble Division Bench of the High Court on 2.3.2001 and the petitioner preferred a Special Leave petition before the Hon'ble Apex Court which was also dismissed. That being the position the plaintiff/decree-holder/opposite party filed another application for police help under Rule 208 of the Civil Rules and Orders in the Title Execution case No. 2 of 1997. At this stage the said Bidhan Bhattacharjee was cross-examined by the petitioner wherein it was admitted by him that no application under Order 21, Rule 97 of the Code of Civil Procedure was filed in the said Title Execution case. On 21.7.2001, the process server went to the suit premises and the alleged second resistance was caused but it is admitted by the process server that he did not lodge any General Diary or First Information Report for such alleged resistance. The application for police help under Rule 208 of the Civil Rules and Orders came up for final hearing on 1.12.2001. Written argument was filed by the learned advocate for the defendant/judgment-debtor/petitioner there at the time of hearing but the learned executing Court was pleased to allow the application for police help by his order No. 50 dated 7.12.2001 under Rule 208 of the Civil Rules and Orders. Being aggrieved by that order the petitioner filed an application under Order 47 Rule 1 read with section 151 of the Code of Civil Procedure for review of the said order and the said case was registered as Miscellaneous case No. 1 of 2002. The said Miscellaneous case was dismissed by order No. 58 dated 11.3.2002. On 15.3.2002 the petitioner moved a stay application in the said Title Execution case in order to bring the necessary order from the superior Court and the learned Executing Court was pleased to allow that petition. And against the said order No. 58 dated 11.3.2002 the present revisional application has been filed.

(3.) It is further stated that the learned Executing Court acted with material irregularity in allowing the prayer for police help and in refusing to review the order granting police assistance and also in considering the submissions made by the petitioner/judgment-debtor set out in the written argument. The learned trial Court also erred to appreciate the position that an application under Rule 208 of the Civil Rules and Orders is a subsidiary to the application under Order 21 Rule 97 of the Code of Civil Procedure and in the absence of any such application under Order 21 Rule 97 of the Civil Procedure Code the application under Rule 208 of the Civil Rules and Orders becomes infructuous.