GOPI KRISHNA MAJI Vs. JUDHISTIR DEY

JUDGEMENT

(1.) The present revisional application is directed against Order No. 17 dated 9.12.94 passed by the learned 2nd Judge, City Civil Court at Calcutta in Title Execution Case No. 55 of 1994. In the connected execution proceeding, an application for police help was filed under the caption of Section 151 of the Code of Civil Procedure. The decree holder filed the said petition stating, inter alia, therein that he got a decree for recovery of possession of the suit premises. On 9.11.94 a bailiff of the Court accompanied by the decree holder went to the suit premises but the bailiff could not deliver possession due to the resistance given by the judgment debtor, his son Gopi Krishna Maji and the daughter-in-law Sm. Shikha Maji. The petitioner-decree holder has asserted that he is entitled to get the decree executed and to recover possession of the suit premises through police help. The learned Judge in the Trial Court by making a reference to a decision reported in 92 CalWN 507 and another decision reported in All India Rent Control Journal, Vol. II, 1984 at page 212 has proceeded on the footing that an Executing Court can grant police help to the decree holder under Section 151 of the Code of Civil procedure.

(2.) Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the opposite parties, has contended that in terms of Order 21 Rule 35(1) of the Code of Civil Procedure, possession is capable of being delivered by removing any person bound by the decree, Mr. Mukherjee has laid special stress on the word and/or expression "by removing any person bound by the decree" and he has further submitted that the decree is straightway not only capable of being executed but the person found in possession, who is representing the judgement-debtor, can also be removed by an order of police help. In support of his submission, Mr Mukherjee has referred to and relied upon the decision cited in the impugned order, namely, the case of Md. Salim v. Md. Assim & Ors., reported in 92 CalWN 507 and in tune with the ratio of law expounded in the cited decision, this court has been attempted to be persuaded to follow the same by holding that an executing court can grant police help to the decree holder under Section 151 of the Code of Civil Procedure on an application under Order 21 Rule 35 of the Code without taking recourse to the provisions of Order 21 Rule 97 thereof. The prosecution of remedy by Section 151 C.P.C. has been considered to be an aid to execution and not execution itself. A distinction has been sought to be made between the nature of an application under Section 151 C.P.C, and air application under Order 21 Rule 97 of the Code. Mr. Mukherjee has further referred to the other decision, namely, in the case of Gangaram v. Debi Singh & Anr., reported in All India Rent Control Journal, Vol. II, 1994 p. 212 and in the said judgment it has been held that a decree holder seeking police help by an application under Section 151 of the Code is entitled to get that remedy. Mr Mukherjee has further relied upon a Full Bench decision in the case of Sm. Usha Jain & Ors. v. Manmohan Bajaj & Anr., reported in AIR 1980 MP 146 and has contended that Order 21 Rule 97 C.P.C, is merely permissive and not mandatory and a decree holder can not be forced to resort to it against his will and may even apply for a fresh warrant under Order 21 Rule 35 C.P.C. No enquiry into the title and possession of a third party at any rate is necessary either under Rule 35, Rule 36, Rule 95 or Rule 96 of Order 21 of the Code when the decree bolder applies for recovery of possession. The omission by the Executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. If such a party is dispossessed according to the said judgment his remedy is under Order 21 Rule 100 C.P.C. for dispossession or to file an independent suit claiming his title therein. The Court has further opined in the said decision that it is likely to cause greater hardship to the decree holder if every claim by a third party is to be investigated by the Executing Court.

(3.) Mr. S. P. Roy Chowdhury, learned Advocate appearing on behalf of the petitioner, has joined issue with the submissions of Mr Mukharjee and to repel the said contention. Mr Roy Chowdhury has drawn the attention of this Court to a Single Bench judgment of this Court reported in AIR 1957 Calcutta 252 in the case of Gayanath Ghosh v. Amulya Chandra Sarkar & Ors., Mr. Roy Chowdhury drew the special attention of this Court to a get mane observation made by Bachawat, J. In paragraph 14 of the said judgment, it has been held that relief by way of restoration of possession obtained by an application under Order 21 Rule 100 of the Code is a poor consolation for a person who is unlawfully dispossessed. According to Mr. Roy Chowdhury, the Court should, therefore, proceed with great caution in granting police help. Mr. Roy Chowdhury has further submitted that whenever an order of police help is passed under whatever labcl, a person not bound by the decree is entitled to be heard otherwise caution required to be adopted by the Court will become illusory. In the said judgment, it has been further held that when there is a bona fidc claim by an occupant that he is not bound by the decree, the Court should decline to give such aid unless the same is negatived. If a claim is vitally affected by an order of police help, such a person is entitled to be heard on an application praying for such help. The Court may examine any person it thinks fit and, if necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. According to Mr. Roy Chowdhury, such prescriptive guidelines have been laid down in the said judgment so that the Court can be cautious before granting police help. Mr Roy Chowdhury has also referred to the case of Gopal Chandra Sadhukhan v. Sk. Jamshed, reported in 68 CalWN 806. Mr Roy Chowdhury has reiterated from the aforesaid judgment that a party against whom an order for police help is sough is entitled to notice so that the Court can exercise its discretion to deal with the case for police help. Mr Roy Chowdhury then referrcd to the case of Ajit Kumar Roy v. Jnanendra Nath Dey, reported in AIR 1975 Calcutta 433 and has drawn the attention of this Court from para. 5 of the said judgment by pointing out that the elementary principle of natural justice is that whenever any application is made against a particular person or persons, it is the duly of the Court to give an opportunity to that person to be heard out. The third party, may be impleaded in the proceeding so that he may be given an opportunity to be heard. If there are allegations that the third party was in connivance with the judgment debtor, then the third party as well as the judgment debtor should be given information about the allegations. The learned Judge in that decision has also dwelt a construction of Rule 208 of Civil Rules and Orders and has opined that if any decree holder prays for police help in execution of a decree, he shall state in his application the full reasons thereof supported if required by an affidavit. The Court will be furthcr required to form its opinion that unless police help is given the execution will not be affected without serious danger to public peace and the Court must record the reasons for allowing such police help. It is one in a grave situation that this extreme step should be taken by the Court. The provisions contained in Rule 208 can be used only in exceptional cases and not too readily when the Court will be of opinion that unless police help is given, there will be danger to the public peace on account of execution of the decree. Mr. Roy Chowdhury in this context has referred to Section 122 C.P.C. and, according to Mr Roy Chowdhury, in terms of the provisions of the Code, the High Courts may from time to time make rules relating to their own procedure and procedure of Civil Courts subject to the superintendence of the High Courts. Mr Roy Chowdhury has placed Civil Rules and orders of the High Court at Calcutta and has relied on the prefix of the first heading contained therein where it has been written that there are rules relating to the Civil Procedure Code. According Mr Roy Chowdhury, Rule 208 of the Civil Rules and Orders in view of the provisions of Section 122 C.P.C. forms part of the rules relating to Civil Procedure Code. Mr Roy Chowdhury has also made the Court read Rule 208 of Civil Rules and Orders which reads thus :