NARAYAN CHANDRA DHAR Vs. KHOKON ROUTH

JUDGEMENT

(1.) - None appears on behalf of the opposite party. Persuant to the order of this court copy of the revisional application was sent under registered post with A/D to the opposite party but the same returned back with the postal endorsement 'not claimed'. The petitioner has also filed an affidavit of service stating that a copy of the revisional application was also served on 9.2.98 upon the learned advocate who appeared on behalf of the opposite party in the City Civil Court at Calcutta. The same is kept on record.

(2.) The petition under Rule 208 of Civil Rules and Orders praying for a direction upon the police authority to render all assistance for execution of the writ for delivery of possession by court's bailiff filed by the decree holder/petitioner in the ejectment Execution Case No. 21 of 1996 was rejected by the City Civil Court at Calcutta by its order No.27 dated 6.12.97. The said order of rejection was made by holding that the decision reported in AIR 1993 Calcutta 128 (Smt. Usha Ghosh v. Rabindra Nath Das & Ors) held that in the matter of delivery of possession in an execution proceeding the court can give police assistance for execution only in exercise of the power under Order 21 Rule 97 of the Civil Procedure Code read with Rule 208 of the Civil Rules and Orders and not otherwise. Accordingly, it was held that the decree holder/petitioner is not entitled to an order for execution of the decree for delivery of possession through police assistance in a petition filed under the provisions of Rule 208 of Civil Rules & Orders alone. Such order of dismissal of the petition of the decree holder under Rule 208 of Civil Rules & Orders has been impugned in this revisional application. 2.The material facts stated in the petition under Rule 208 of the Civil Rules & Orders (herein after referred to as the Civil Rules) may briefly be stated as follows :- The decree holder/petitioner got a decree for recovery of possession against the opposite party in ejectment suit No.228 of 1991 on 28th day of December, 1995. The said decree was put into execution and in the execution case the court bailiff was directed to deliver possession of the decretal property by breaking open the padlock of the suit premises on 15.4.96. The court bailiff returned the unexecuted writ with a report dated 15.4.96 stating that the contents of the writ of possession and the decree were read over and explained to the judgment debtor/opposite party and he was asked to vacate the decretal property as per schedule of the writ by removing all articles therefrom. The said judgment debtor heard the contents of the same and not only refused to vacate the decretal property but became furious and along with his 4/5 associates, who refused to disclose their names, put up strong resistance against taking over possession of the decretal property. Since there was serious apprehension of breach of peace so writ of possession could not be executed so the same was returned unexecuted. In these state of things, the decree holder/petitioner filed the application under Rule 208 of said Civil Rules on 23.5.96 praying for a direction upon the officer in charge, Munchipara P.S. to render all assistance in executing the writ for delivery of possession through court bailiff in the above execution case.

(3.) The only issue for decision in this revisional case is that in view of the Divisional Bench Judgment of this court reported in AIR 1993 Calcutta 128 (supra) wheather an application under provisions of Rule 208 of the said Rules alone, for police help in executing the decree for possession of immovable property without taking recourse to the provisions of Order 21 Rule 97 of the Code is maintainable or not. To appreciate the legal position in this regard, it is necessary to look into the provisions prescribed both in Rule 208 of the said Civil Rules and Order 21 Rule 97 of the Code which are reproduced below :- Rule 208 :