SASANKA MOHAN SAHA Vs. GOUTAM BASU

JUDGEMENT

(1.) No one appears for the Opposite Party and hence the matter is taken up ex parte against the Opposite Party.

(2.) This revisional application at the instance of decree-holder/petitioner is directed against order dated May 7, 2011 passed by the learned Additional District Judge, 1st Court, Hooghly in Title Appeal No.67 of 2007. Petitioner filed a suit on September 30, 1994 for ejectment, arrear rent and mesne profit. In that suit a decree was passed on April 27, 2001. The suit was decreed on contest in favour of the plaintiffs and the defendants were directed to hand over peaceful vacant possession of the suit property to the plaintiff within 3 months from the date of the said decree. The defendant was also directed to pay the plaintiff the calculated arrear rent of Rs. 20,750/- together with statutory interest, in default the plaintiff was allowed to proceed as per law. Defendant filed an appeal on June 2, 2001 which was numbered as Title Appeal No.130 of 2001. The 1st Appellate Court allowed the appeal in part on contest. The judgment and decree passed by the learned trial Court, however, was affirmed but with certain modification at the ordering portion.

(3.) A second appeal was filed therefrom which was dismissed under Order 41 Rule 11 of the Code of Civil Procedure. The decree-holder/petitioner filed an application under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure and also under Rule 208 of the Civil Rules and Orders in Title Execution Case No.8 of 2004, which was numbered as Misc. Case No.28 of 2006, for issuing writ of delivery of possession through the assistance of police. In the said application the petitioner/decree-holder stated that vide Order No.39 dated April 26, 2006 the writ of delivery of possession was issued by the learned executing Court and that on June 7, 2005 the process server went to the locale to execute the decree. Both the decree-holder and the judgment-debtor were present. The judgment-debtor was present with his brothers and other family members including some female. It is the case made out by the decree-holder that when the process server asked the judgment-debtor to quit and vacate the premises and to give peaceful delivery of possession of the suit premises to the decree-holder, he denied and threatened the decree-holder and also resisted the process server. He divulged that whoever would go to take delivery of possession he would be physically assaulted. The decreeholder stated before the executing Court that there was breach of the peace. The process server, if wanted delivery of possession, there would have been serious breach of the peace and, ultimately, the process server failed to give delivery of possession and it would not be possible without police assistance. Accordingly, the decree-holder prayed for police assistance in order to execute the decree so that he gets delivery of possession of the suit premises. The decree-holder asserted for the need of 1 Sub-Inspector of Police, 4 armed constables, 2 lady constables in order to execute the decree and to avoid breach of the peace. The decree-holder also asserted that he was agreeable to bear the cost required for the aforesaid purpose.