DIPAK KUMAR MUNSHI Vs. MEERA CHATTERJEE

JUDGEMENT

(1.) IT appears that the opposite party Sm. Meera chatterjee instituted a suit being Title Suit 243 of 1977 for eviction of the petitioners. The said suit was decreed and the appeal preferred by the tenant petitioners being Title Appeal No. 382 of 1985 was also dismissed by the Court of Appeal below. Against the said judgment and decree of the court of appeal below, the tenant petitioners preferred an appeal in this court being S. A. T. No. 335 of 1986 and the said appeal has been admitted after hearing under Order 41 Rule 11 of the Code of Civil Procedure and is pending decision before this Court. An application for interim order was made in the said appeal but as it was submitted at the time of admission of the said appeal that during the pendency of the appeal before this court and before the hearing of the appeal under order 41 Rule 11 of the Code of Civil Procedure the landlady had executed the decree and had obtained possession of the disputed premises, the said application for interim order was not disposed of by this court but liberty was given to the tenant appellant to make proper application before the executing court for appropriate relief and recovery of possession until the disposal of the appeal before this court. It appears that thereafter the judgment-debtor tenant made and application under section 47 read with section 151 of the Code of Civil Procedure before the executing court inter alia contending therein that the said decree was purported to have been executed in violation of the mandatory provisions of law and by restoring to illegal and unfair practice. It was inter-alia prayed for by the judgment-debtor tenants that in the facts of the case the decree-holder landlady should be directed to restore back the possession of the premises in question to the tenants.

(2.) THE learned Munsif, 3rd Coent, Alipore by order No. 14 dated 10th May, 1986 dismissed Misc. Case No. 2 8 of 1986 arising out of the said application under section 47 read with section 151 of the Code of Civil procedure made by the defendant tenants. Against the said order No. 14 dated 10th May, 1986, the defendant tenants petitioners have made an application under section 115 of the Code of Civil Procedure and the said revisional application in C. O. No. 1681 of 1986 has been assigned to us by the learned Chief Justice. Both the revisional application and application for interim order in 5. A. T. No. 335 of 1986 have been heard analogously and are being disposed of by the following judgment.

(3.) MR. Mukherjee, the learned Counsel appearing for the petitioners has drawn our attention to the records of the executing court since called for by us after hearing the parties at length. Mr. Mukherjee has submitted that the decree of the court of appeal below was passed on 16th December, 1985 and long before the expiry of the period of limitation for preferring an appeal before this court against the said decree, the tenants petitioners made an application before the executing court on 8th January, 1986 for stay of the execution of the decree on the ground that the certified copy of the judgment and decree had not been made available to the defendant tenants for preferring the second appeal before this court. It may be noted here that on 19th December, 1985, an application for certified copy of the judgment and decree had been made by the defendant tenants. It appears from an endorsement of the Id. Munsif made at the top of the left hand comer of the said application that the said application was held to be premature and was therefore rejected on the very date of making the application. It had been very strenously contended on behalf of the tenant petitioners that it is the usual practice in the Alipore Court that when such applications for stay of execution is filed, the said application as a matter of routine is directed to be put up along with execution records and the same is considered on merits in the execution proceeding. It has also been contended by the petitioners that no intimation was given to the learned Advocate of the petitioners that on the very Same date the learned Munsif had rejected the said application on the ground that the same was premature by giving a note on the top of the application itself. It has been submitted by Mr. Mukherjee that in the aforesaid circumstances the tenants had been entertaining a bona-fide belief that the said application for stay was pending consideration and proper consideration of the same would be made by the learned Judge at the time of executing the decree. Mr. Mukherjee has also contended that provisions of sub-rule 3 of rule 24 of Order No. 21 of the Code of Civil Procedure are mandatory and the date by which the decree will be executed must be specified by the learned executing judge and failure to mention such date of execution will make the writ for delivery of possession unworkable and invalid. Mukherjee has contended that prior to the amendment in 1976, sud (3) of rule 24 of order 21 provided that in the writ a day show-id be specified on or before which it should be executed. By an amendment of Calcutta High Court to sub-rule 3 it was added that a day shall also be specified by which it should be returned to court. In view of the amendment of sub-rule 3 in 1976 it has been provided that failure to mention the date of return the process will not be invalid but the requirement to specify the date by the learned executing Judge in the process by which the process is to be executed is mandatory and the intention of the legislature was there should not be any relaxation in the matter of specifying the date by which it is to be executed is quite clear. Mr. Mukherjee has submitted that it will appear from order NO. 2 dated January 27, 1986 passed by the learned executing Judge that the learned Judge directed for issue of a writ under order 21 Rule 35 C. P. Code fixing February 26, 1986 for service return (SR) but neither in the said order or in the writ issued by him no date has been specified on for before which the decree is to be executed. Hence, such writ is in-operative and no effect can be given to the same. It also appears from the endorsement made by the Nazir in the said warrant or process that the bailiff was directed for service and return by 18th January, 1986. Such endorsement by the Nazir is erroneous on the face of it because the warrant was signed by the learned Munsif on 29th January, 1986 and as such there was no occasion for the bailiff to execute and return on 18th January 1986. It appears that on the very next date viz. on 30th January, 1986, the decree was purported to have been executed by the bailiff and it appears from the report of the bailiff that the judgment debtor tenants could not be found but a person on their behalf opened the door and thereafter had left the premises and after waiting for about an hour when the said person did not return, all articles found in the said premises were removed from the disputed premises and possession was delivered to the decree-holder. The process server has given a long list of articles removed from the disputed premises including steel almirah, ceiling fans, pumping machine, washing machine, refrigerator etc. It has been contended by the tenants petitioners that the report of the process server or the bailiff is absolutely false and nodoby on behalf of the judgment debtors tenants was present but the lock of the said residential premises of the tenants had been broken by the decree holder in connivance with the bailiff in the absence of the judgment debtors and all valuable belongings of the judgment-debtor had been throw in the wide passage of the said premises and possession of the said premises had been illegally delivered to the decree-holder by the bailiff of the said court. It has also been contended that in the Alipore Court which is the biggest and most busy court in West Bengal it was almost impossible to hand over the wait to the process server after endorsement by the Nazir on the very date when the learned Munsif had signed the writ viz. on 29th January, 1986 when the learned Judges usually sign such writs in the afternoon after other judicial works. In the instant case, the said defective writ gned by the learned Muns on 29th January, 1986 appears to have been processed by the Nazir on the very same day and had been delivered to the bailiff with an endorsement for service and return on 18th January 1986 and on the very next day i. e. on 30th January, 19s6 the delivery of possession of the duisputed premises was purported to have been made by the bailiff.