The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 2146 of 2014 Gurudeo Prasad, S/o Late Shib Narayan Prasad, R/o Makatpur, PS Giridih (T), PO-Giridih, District-Giridih, Jharkhand … … Versus Petitioner Jagdish Prasad Malakar, S/o Late Feku Malakar, R/o Makatpur, PS- Respondent Giridih(T), PO-Giridih, District-Giridih, Jharkhand … --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner : Mr. R. N. Sahay, Advocate : Mr. Yashvardhan, Advocate For the Respondent : None 15/16.05.2023 1. 2.
Legal Reasoning
Learned counsel for the petitioner Mr. R. N. Sahay is present. Nobody appears on behalf of the respondent in spite of service of notice. Non-appearance of the respondents has been recorded by various orders passed by this Court from time to time. 3. This writ petition has been filed for the following reliefs: - “to quash and set-aside the order dated 15.02.2014, passed by Munsiff, Giridih, in Execution Case No. 07 of 2011, whereby and whereunder he has been pleased to reject the petition dated 21.09.2013 filed by the decree holder-Plaintiff Petitioner herein in which prayer for deputation of Magistrate and Police was made for effecting the delivery of possession of the suit premises of the decree holder.” 4. Learned senior counsel for the petitioner has submitted that the petitioner is a decree holder arising out of Eviction Suit No. 07/2002 against the respondent and had filed an Execution Case No. 07/2011 pursuant to the judgment and decree dated 21.02.2012 and 04.02.2011 respectively. He has also submitted that a writ of delivery of possession was issued by the executing court and Nazir was directed to deliver peaceful and vacant possession of the suit premises to the decree holder. 5. Thereafter, the Nazir went to the suit premises on 01.09.2013 along with others, the decree holder was also accompanied him who identified the suit property, but the delivery of possession was obstructed by the son of the judgment debtor and his friend and ultimately a report was submitted to the executing court that there was a chance of breach of law and order and delivery of possession be effected through Magistrate and Police be deputed. 2 6. Consequently, the petitioner filed an application in the executing court to depute Magistrate and Police along with Lady Police to assist the Nazir, to which a rejoinder was filed and ultimately, the learned court below rejected the petition by holding that the Nazir was acting in connivance with the decree holder. 7. The learned senior counsel submits that there is no question of any connivance between the decree holder and Nazir as they are both interested in execution of decree before the learned court below. The learned counsel further submits that the learned court below while rejecting the petition has further committed an error by asking the petitioner to take fresh steps for issuance of warrant. The learned counsel submits that the warrant for delivery of possession was already issued, therefore, there was no requirement of any fresh step. 8. The learned senior counsel submits that he would be satisfied if appropriate direction is issued for calling for a fresh Nazir report and then, if required, the police/Magistrate be deputed by the learned court below. The learned counsel has also submitted that much time has elapsed from the date of passing of the impugned order, therefore, it will be in the interest of justice, if a fresh Nazir report is called for by the learned court below and the impugned order directing the petitioner- decree holder for taking fresh steps be set-aside. 9. The learned senior counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Co8urt reported in (2021) 6 SCC 418 (Rahul S. Shah vs. Jitendra Kumar Gandhi & Others) to submit that certain guidelines have been issued by the Hon’ble Supreme Court to ensure expeditious execution of the decree passed by the learned court below. Paragraph 42 and 43 of the said judgment are quoted as under: - “42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions: 42.1 In suits relating to delivery of possession, the court must examine the parties to the suit under Order 10 in relation to third-party interest and further exercise the power under Order 11 Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. 3 42.2 In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property. 42.3. After examination of parties under Order 10 or production of documents under Order 11 or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 42.4 Under Order 40 Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter. 42.5 The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. 42.6 In a money suit, the Court must invariably resort to Order 21 Rule 11, ensuring immediate execution of decree for payment of money on oral application. 42.7 In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree. 42.8 The Court exercising jurisdiction under Section 47 or under Order 21 of CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant. 42.9 The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 42.10 The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order 21 as well as grant compensatory costs in accordance with Section 35A. 42.11 Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property. 42.12 The Executing Court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. 42.13 The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned police station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant 4 while discharging his duties is brought to the knowledge of the court, the same must be dealt stringently in accordance with law. 42.14 The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the executing courts. 43. We further direct all the High Courts to reconsider and update all the Rules relating to execution of decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.” 10. After hearing the learned counsel for the petitioner, the narration of facts as stated by the learned senior counsel for the petitioner as reflecting from the writ petition are not in dispute The decree is on record. It further appears that the writ for delivery of possession was issued by the learned court below and a report was submitted by the Nazir that there could be law and order problem and there was resistance from the side of the son of the judgment debtor and his friends and in such circumstances, the petitioner had filed a petition for deputation of Magistrate/Police to the effect the delivery of possession and to assist Nazir. 11. From perusal of the impugned order, it appears that the learned court below has refused to proceed to depute the Magistrate/Police by recording that there was some connivance between the petitioner-the decree holder and Nazir and at the same time the learned court below has directed the petitioner to take fresh steps for the execution of decree i.e., writ afresh. 12. This Court is of the considered view that even if the learned court below had some doubt about the conduct of the nazir, the learned court below ought to have passed appropriate order for appointment of a commissioner to assess the accurate description and status of the property instead of asking the petitioner-the decree holder to take fresh steps for the execution of decree i.e., writ afresh. The writ for delivery of possession was already issued and the same was to be duly executed and it was the responsibility of the learned court below to get the decree executed in accordance with law. If the court is not satisfied with one or the other report, it court have called for a fresh report instead of asking 5 the decree holder to take fresh steps for the execution of decree i.e., writ afresh. 13. This Court is of the considered view that the learned court below, while rejecting the report submitted by the Nazir on allegation of collusion etc., ought to have called for another report by deputing another team and could have also included pleader Commissioner/Advocate Commissioner for the purposes of doing the needful in furtherance of execution of the writ for delivery of possession already issued by the learned court below. 14. Accordingly, this Court is of the considered view that the impugned order to the extent it has asked the decree holder to take fresh steps for the execution of decree i.e., writ afresh, is not sustainable in the eyes of law and the impugned order is accordingly set-aside to that extent only. 15. Consequently, the learned court below is directed to appoint a commissioner to assess the accurate description and status of the property and upon receipt of the report and in case of any resistance depute a magistrate/police force to execute the decree The Executing Court must dispose of the execution proceedings within six months from the date of receipt of a copy of this order which may be extended only by recording reasons in writing for such delay. 16. The learned court below is directed to provide a copy of this order to the learned counsel appearing on behalf of the judgment debtor before the learned court below. The learned court below is also directed to take all steps for expeditious execution of the decree. 17. Accordingly, this writ petition is disposed of with the aforesaid directions/observations. 18. 19. Let a copy of this order be immediately communicated to the Pending interlocutory application, if any, is closed. learned court below through FAX/E-mail. Mukul (Anubha Rawat Choudhary, J.)