NIRMAL CHANDRA DUTTA Vs. GIRINDRA NARAYAN ROY

JUDGEMENT

(1.) THIS Rule is at the instance of the decree-holder in an execution proceeding and it is directed against order no. 64 dated January 3 1978 passed by the learned Subordinate Judge, Second Court. Alipore, The only question that is involved in this Rule is whether the opposite party no. 3, the state of West Bengal was entitle to lodge a caveat under section 148a as introduced in the Code of Civil Procedure by section 50 of the Code of Civil Procedure (Amendment) Act 1976.

(2.) ON May 31, 1975, the petitioner obtained a decree for ejectment and manse profits against the judgment-debtors opposite parties in respect of the first floor and the top floor of premises no. 10d, Dilkhusa Street. Karaya,calcutta, in Title Suit No. 87 of 1973 of the second Court, of the Subordinate judge, Alipore. On September 1. 1975. the petitioner put the said decree in execution in Title Execution Case No. , 23 of 1975. When the bailiff of the court accompanied by the petitioner went to deliver possession of the disputed premises, the judgment-debtors offered resistance and accordingly, the bailiff could not execute the writ of delivery of possession and returned the same to the court together with his report about the resistance offered by the judgment-debtors. The petitioner died an application under order 21, rule 97 of the Code of Civil procedure complaining of the resistance to delivery of possession by the judgment debtors and their men and prayed for granting police help to the bailiff for the execution of the writ of delivery of possession. The said application was registered as Misc. Case No. 37 of 1977. The notice of the said application was served upon the judgment-debtors in the usual way as well as under registered post with acknowledgement due. In spite of the service of notice, the judgment-debtors did not appear and oppose the prayer for delivary of possession with police help. The learned Subordinate Judge by his order dated September 24,1977, allowed the Misc. Case, and directed execution of the writ of delivery of possession by the bailiff with police help. November 15, 1977,was fixed by the learned Subordinate Judge for the execution of the writ of delivery of possesion. On November 14,1977,the judgment debtors filed an affidavit and a petition praying for stay of the execution case. On that very day, the opposite party no. 3 the State of West Bengal filed a caveat in the form of an application under section 148a of of Civil Procedure as inserted by the said amendment Act, interracial alleging therein that on June 6,1977. the first Land Acquisition Collector, Calcutta had requisitioned the disputed premises under section 3 of the act of 1947 after the publication and service of notices upon all the parties concerned on that date, and that on the day following, that is, on June 7, 1977, possession of the disputed premises was delivered by the judgment-debtors to the said land Acquisition Collector, Calcutta. It was prayed by the opposite no. 3 that it should be given a before the writ of delivery of possession was issued. The prayer of the party no. 3 was by the petitioner. If was contended by the petitioner that the State of West Bengal had no locus stand to lodge a caveat under section 148a. Further it was alleged by the petitioner that no notice of the requisition order was served upon him.

(3.) THE learned Subordinate Judge, by the Impugned order no. 64 dated january 3, 1978, came to the finding that the State of West Bengal had locus stand to lodge a caveat under section 148a. He assumed that there was service of the notice under section 3 of Act V of 1947 and held that the order of requisition could not be called in question in any court. Further, he found that the judgment-debtors were no longer in possession of the disputed premises and accordingly, there was no question of executing the writ of delivery of the possession against the judgment-debtors. It was held by the learned subordinate Judge that the decree-holder would get only symbolical possession of me disputed premises and not. khas possession. Upon the said findings, the learned Subordinate Judge allowed the application of the State of West bengal under section 148a of the Code of Civil Procedure and recalled the writ of delivery of possession. Hence this Rule.