DWARIKANATH CHOWDHURY Vs. SADANANDA CHOWDHURY

JUDGEMENT

(1.) -In this application under Article 227 of the Constitution of India, defendants/petitioners have challenged the Order dated 10th December 2001 passed by learned 7th Court of Additional District Judge at Alipore in Civil Revision No. 398 of 2001 whereby and whereunder Civil revisional Application was dismissed and the order dated 20th June 2001 passed by learned Civil Judge, Senior Division, 5th Court at Alipore in title execution Case No. of 1989 was affirmed whereby learned Civil Judge, Senior Division aforesaid dismissed the application of the judgment debtor who prayed for recalling the order of police help as was allowed in favour of the decree holder in execution of the decree upto entertaining the application under rule 208 of the Civil Rules and Orders of the High Court of Calcutta. Though this application in fact is a second revisional application challenging the order of lower Revisional Court under the guise of Artricle 227 of the Constitution of India, which as per settled legal position of the Court is entertainable only in rarest to rare cases, the point of law as urged before this Court, this Court has considered the same as rarest to rare cases and accordingly this application under Article 227 is maintainable. A basic constitutional point is involved in this matter namely principle of audi alterem partam that is the natural justice principle, which is the basic fundamental law in terms of the constitutional mandate whether has applicability under rule 208 aforesaid. For appreciation point of law, the factual matrix of the case in short is required to be considered first.

(2.) After tooth and nail contest even up to the apex Court an eviction decree was crystallized in favour of the plaintiff opposite parties herein. It was placed for execution under title execution Case No. 6 of 1989. Judgment debtor initially resisted such execution by filing application under section 38 of the Code of Civil Procedure, taking jurisdictional point, but same was rejected by the learned Executing Court below and order was passed to execute the writ of possession through Court against which a Civil Revisional case was filed and same faced dismissal. Judgment debtor filed an application under rule 208 of Civil Rules and Orders of the High Court at Calcutta hereinafter refer to for brevity as Civil Rules and Orders alleging, inter alia, that the judgment debtor since resisted. The Court beliff to take possession of the suit premises in pursuance of the order of the Court resulting a breach of peace, necessary police help would be allowed to execute the decree for recovery of possession. This application was heard ex-parte by the learned executing Court below and an order dated 28th February 2001 granting police help was passed for the purpose of execution of the writ. An application for recalling the said order dated 20th August 2001 was filed by the judgment debtor, contending, inter alia, that the said order dated 28th February, 2001 passed by learned Executing Court was an ex-parte order without even service of copy of said application and on other ground that beliff was not examined with reference to his report in which he alleged submitted that the judgment debtor resisted the beliff under threat of dire consequences. It was further contended in that application for recalling of the ex-parte order granting police help that the application was not maintainable as there was a specific provision under the Code of Civil Procedure under Order 21 rule 97 to deal with the situation as alleged in the application by the decree holder and the said provision provides opportunity of hearing to the judgment debtor who allegedly opposed and/or resisted the beliff to execute the writ regarding delivery of possession. This application was rejected by the learned Executing Court, holding, inter alia, that under the aforesaid rule 208 of Civil Rules and orders, there was no question of hearing the judgment debtor before passing any order of police help and as such there was no illegality in the order in question. Challenging the said order dated 28th February 2001, Civil Revision No. 398 of 2001 was preferred before the learned Court of Additional District Judge, 7th Court at Alipore, which was dismissed and the order of learned Executing Court rejecting the application to recall the order dated 28th June 2001 was affirmed. Learned Revisional Court below also held that under rule 208 of the Civil Rules and Orders, there was no necessity of serving any notice to the judgment debtor and hearing to the judgment debtor even if under identical facts, judgment debtor is entitled to have a hearing in the event of adjudication of any application under Order 21 rule 97 of the Civil Procedure Code. Against the order dated 10th December 2001 dismissing the civil revision case by the learned Civil Revisional Court below, present application under Artricle 227 has been filed by the judgment debtor. Learned advocate for the petitioner submitted that the application for police help as filed by the decree holder alleging resistance to the beliff and creating of a problem of peace ,was in fact required to be filed under the provision of Order 21 rule 97 of the Code of Civil Procedure, which provides, inter alia, opportunity of hearing to the person concerned who resisted the beliff in executing the writ of the Court. It is further contended that there was no materials before the learned Executing Court below to adjudicate the application under rule 208 of the Civil Rules and Orders and the learned Court below did not examine the beliff for his satisfaction that there was an emergent situation as would endanger the public peace unless such Police protection was provided. It is vehemently submitted that petitioner has also the right under said rule 208 to be heard. On the other hand, learned advocate for the opposite parties contended, inter alia, that under rule 208 of the said Civil Rules and Orders, there was no necessity of hearing the judgment debtor or anybody else who would resist the execution of writ. It is contended that Order 21 rule 97 of Civil Procedure Code has no applicability in the present facts of the case. It is further submitted by the learned advocate of the opposite party that Order 21 rule 97 of Civil Procedure Code provides a situation wherein judgment debtor and/or anybody who would oppose or resist the execution of decree would be heard, but rule 208 of Civil Rules and Orders is silent on issue of hearing to them. It provides that under emergent situation without hearing the person who resisted the execution of writ, Police help to be provided to the decree holder for execution of the writ. It is further contended that there was no scope of hearing to the person concerned who resisted or who would resist the execution of decree under the provision of rule 208 of the Civil Rules and Orders. Considering the rival contention of the parties, the relevant statutory provision namely Order 21 Rules 97, 98, 101, 105 and 106 of the Civil Procedure Code, which provides an opportunity of hearing to the judgment debtor or any party who would resist the decree qua Rule 208 of the Civil Rules and Orders are required to be dealt with. For effective adjudication of this case, the relevant provisions of the aforesaid two provisions are quoted hereinbelow in extenso: 208.

(3.) Civil Rules and Orders of High Court, Calcutta was framed and constituted in terms of the power vested to the High Court of Calcutta under section 122 of the Code of Civil Procedure, 1908. Section 122 of the Old Code qua the amended Code there is no substantial change after the Civil Procedure Code came into effect on incorporating many amendments. Section 122 of Civil Procedure Code, 1973 hereinafter refer to as Amended Code reads as follows: