NANDALAL GHOSH Vs. SAKTIPADA BAG

JUDGEMENT

(1.) HEARD the learned Advocates for the respective parties. The facts of the case, very briefly, are as follows :-The predecessor-in-interest of the opposite parties filed a suit for eviction against the petitioner in the year 1990 and such suit was decreed ex-parte in the year 2000. The petitioner filed an application under Order 9 Rule 13, C. P. C. for setting, aside the ex-parte decree but the learned trial Court dismissed the said application after a contesting hearing. An appeal was preferred against such order of dismissal but upon a contested hearing the said appeal was also dismissed. Challenging such order of dismissal the petitioner filed a revisional application before this Court but the revisional application was also dismissed in the year 2007. The petitioner, thereafter, filed a regular appeal being a Title appeal against the ex-parte decree of eviction together with an application under Section 5 read with Section 14 of the Limitation Act. Upon a contested hearing the learned First Appellate Court rejected the application and, consequently, the appeal was also dismissed. Challenging the judgement and decree passed by the learned First Appellate Court the petitioner preferred a second Appeal before this Court, A Division Bench of this Court was pleased to dismiss the said Second Appeal. It appears that the opposite parties had put the ex-parte decree in execution being Title Execution Case No. 3 of 2007. It will appear from the impugned order that the Court bailiff went to the suit property for execution of the decree but due to strong resistance by the judgement-debtor/petitioner and his men the said decree could not be executed, the opposite parties filed an application under Order 21 Rule 97 of the Code of Civil Procedure which was registered as Miscellaneous Case No. 29 of 2007 for grant of police help to execute the decree. In such Miscellaneous case, on 2. 5. 2009 the learned Court below passed an order fixing 4. 5. 2009 for order. On 4. 5. 2009 by the impugned order the learned Court below observed that the Second Appeal has been dismissed and there is no stay order in the case. It appears that one of the opposite parties and the bailiff concerned were examined as P. W. 1 and P. W. 2 respectively and the writ with the bailiffs report was marked as Ext. 1. The learned Court below on perusal of the evidence found that on 25. 09. 2007 the decree holder and the Court bailiff went to the suit property for execution of the decree but due to strong resistance by the judgement-debtor and his men the said decree could not be executed and that there is no reason to disbelieve the evidence adduced on behalf of the opposite parties. The learned Court below rejected the petitioner's application for time to file written objection and allowed the said application under Order 21 Rule 97, C. P. C. Challenging such impugned order dated 4. 5. 2009 the petitioner has filed the present revisional application.

(2.) THE only point raised on behalf of the petitioner is that the learned court below acted illegally and with material irregularity in rejecting the petitioner's prayer for time to file the written objection against the application under Order 21 Rule 97, C. P. C. According to the learned Advocate for the pititioner, the petitioner was entitled under the law to file a written objection against the said application under Order 21 Rule 97, C. P. C. and contest the said proceedings. The senior learned Advocate appearing on behalf of the opposite parties submitted that since the petitioner is the judgement-debtor against whom the eviction decree has been passed, the petitioner is not entitled under the law to have any opportunity to file a written objection in the said misc, Case under Order 21 Rule 97, C:p. C. The said learned senior Advocate further submitted thit if it had been a case where a stranger-third party, claiming an independent right, title and/or interest in the property in dispute, had filed an application for time to file written objection against the application for police help then in that event such time may have to be granted but the judgement-debtor cannot be given any opportunity of hearing before passing orders on the application for police help under Order 21 Rule 97, C. P. C. Order 21 Rule 97, C. P. C. envisages inter alia that if the decree holder is resisted and/or obstructed from having an eviction decree executed and from taking delivery of possession, the decree holder may make an application to the Court complaining of such resistance or obstruction. It has been further provided that where any such application is made the Court shall proceed to 'adjudicate' upon the application in accordance with the relevant provisions contained in the said Order 21, C. P. C. According to the provisions of Order 21 Rule 101 all questions (including question relating to right, title and/or interest in the property)arising between the parties to a proceeding on an application under Order 21 rule 97 or Rule 99, C. P. C. or their representatives, and relevant to the 'adjudication', of the application, shall have to be determined by the Court dealing with such application and not by a separate suit. Looking into the aforesaid provisions of law it will appear that an adjudication is required to be made by the Court when an application under Order 21 pule 97, C. P. C. is filed by a person.

(3.) ORDER 21 Rule 98 envisages that upon determination of the questions referred to a Rule 101 the Court shall, in accordance with such determination and subject to the provisions of sub rule (2), make an appropriate order either allowing the application and directing the applicant to be put in possession of the property or dismissing the application or pass any other appropriate order according to the circumstances of the case. In sub-rule (2)of Order 21 Rule 98 it has been provided that where upon determination by the coyrt, the Court is satisfied that the resistance and/or obstruction was occasioned without any just cause by the judgement-debtor or by some other person at the judgement-debtor's instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into the possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, order the judgement-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. It will thus appear that serious consequences may follow if any resistance or obstruction is caused to the execution of the decree without any just cause and valid reasons.