Dulal Chandra Pahari & Ors. v. Sri Shankarasis Pahari & Ors.

“41. Having regard to the above background, wherein there is urgent need to reduce delays in execution proceedings we deem appropriate to few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law. 42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions: 4 the execution proceedings only *** 42.9. The court should allow taking of evidence during 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 35-A. *** 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 police station concerned to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties knowledge of the court, the same must be dealt with stringently in accordance with law.” is brought

#5. Reference is made to the decision of Gaya Nath vs Amulya Chandra reported in AIR 1957 Cal 252. This judgment supports the view that an application for police help is essentially different from an application under Order 21 Rule 97 of the Code of Civil Procedure. The court held as follows:- “12. If the decree cannot be effectively executed without police help the decree-holder may apply to the Court for the grant of such help. An application for police help is essentially different from an application under order 21 rule 97 though the two applications are often joined in one petition. This Court has framed special rules for dealing with applications for police help (See Manual of the Court 5 of Small Causes, Calcutta, Volume II, Part 4, Chapter IV, page 54, rules 137 and 137A to 137D; Civil Rules and Orders, Volume I, page 80, rule 261; Original Side Rules, Chapter 17, rules 14A to 14D. 13. An order for police help vitally affects all persons in actual possession of the property. With the powerful backing of such an order all persons in actual possession whether they are bound by the decree or not are to be evicted brevi likely manu from the property summarily. Relief by way of restoration of possession obtained by an application under Order 21. rule 100 is poor consolation for a person who is unlawfully dispossessed. The Court should, therefore, proceed with great caution in granting police help. The Court should not hesitate to give such aid if execution of its process is unlawfully obstructed and its process cannot be executed without such aid.”

#6. Thus, the application may not be under Order 21 Rule 97 of the Code of Civil Procedure but a simple application for assistance to the court bailiff in the course of delivery of possession. This need not be registered as a J. Misc Case. Reference is made to the decision of Bandana Das vs Saroj Kumar Das reported in (2009) 1 CHN 878 , the court held as follows:- inter alia, “(16). In the facts of the instant case, taking into consideration the pleadings of the decree - holder in his application for police help under Rule 208 of the Civil Rules and Orders, there was no occasion for the learned Court below to reject the application, by observing, complaint of obstruction and resistance was required to be made by the decree-holder under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and the provision of Rule 208 of the Civil Rules and Orders would be attracted only thereafter. It appears that the learned Court below not only failed to take into consideration application of the decree-holder, reproduced hereinbefore, but also lost sight of the scope of specific pleadings contained 6 Rule 208 of the Civil Rules and Orders, which has been discussed in detail hereinbefore. (17). The scheme of the various provisions of the Code of Civil Procedure, 1908, entrusts an obligation upon the Court to ensure that a valid decree passed by it is not frustrated by reason of resistance of someone or some persons who cannot even lay a bona fide claim of not being bound by the decree and therefore entitled to resist eviction in execution of the decree. (18). Order XXI of the Code of Civil Procedure, 1908, provides for execution of decrees and orders. The elaborate provisions of the various rules and sub-rules thereunder provides the Court mechanism to enable execution of its decrees and orders. In my view, as observed hereinbefore, such procedural law cannot be used to obstruct a valid decree being put into execution, by reason of resistance of someone or some persons who cannot even lay a bona fide claim of not being bound by the decree and therefore entitled to resist eviction on execution of the decree. In fact, Order XXI Rule 97 of the Code of Civil Procedure, 1908, is a facilitator to the process of execution and not a hindrance.”

#7. The petitioner contends that apart from the decretal property, the petitioners are being removed from their possession outside the decretal property. This issue is not germane for a decision at this stage.

#8. Under such circumstances, the revisional application fails and is dismissed.

#9. There shall be no order as to costs.

#10. Parties are to act on the server copy of this order. (Shampa Sarkar, J.)