Subol Chandra Dutta And Others v. Chimai Charan Nandy And Others Opposite Parties.

1. The decree-holder opposite parties filed an application on 4-7-78 for police help when the decree-holders along with the commissioner went to execute the writ of delivery of possession of the suit property the judgement-debtors with the help of some goondas did not allow the commissioner to measure the suit property and threatened him with dire consequences. As a result the commissioner and process server could not execute the writ. Under the circumstances delivery of possession could not be given and unless police help was given the writ would become un-executable. This application was opposed by the judgement-debtors by filing a written objection. Their case is that they did not obstruct the commissioner who went to execute the writ. The commissioner in collusion with the decree holders submitted a collusive and false report. The learned Munsif relied upon the commissioner's report wherein he had stated that judgement-debtors threatened that they would not allow him to measure the suit property and the commissioner apprehending danger to himself accordingly left the place naming the persons who caused obstruction to him. No evidence was adduced by the judgement-debtors. Accordingly, the learned Munsif relying upon the report submitted by the commissioner was satisfied that the judgement-debtors had obstructed the commissioner and the process server in the discharge of their duties and found that without police help the writ could not be executed. Accordingly, he allowed the petition of the decree-holders and ordered the petitioner to put in the costs for deputing 1 ASI, 4 Armed constables and 1 lady police. Against this order the petitioners judgement-debtors have come up in revision, The first and foremost objection taken is that according to Civil Rule 776 (Chapter XXXVI) it is incumbent on the learned Munsif on an application under O. 21 R. 97 being made, to start a Misc. Judicial Case and after serving notice of such application upon the petitioners if the learned Munsif is satisfied that the order for police help is to be made, may pass such an order. But in this case, the learned Munsif neither started a Misc. Judicial Case nor were there any materials before him for the legal satisfaction that there was apprehension of breach of peace and police help was required under the circumstances. But the learned Advocate appearing for the opposite parties decree-holders has submitted that nothing turns upon the failure of the learned Munsif to start a Misc. Judicial Case and the matter does not come within O. 21 R. 97 which relates to delivery of possession of immovable property. In this case the suit was for declaration of easement right over the disputed property and the writ that was issued to the commissioner was for measuring the obstruction to the passage and for removal of the same. The easement right pre-supposes a right over somebody else's property. Therefore, there is no question of delivery of possession of property as contemplated under Order 21 Rule 35. Therefore, it was not necessary to start a misc. Judicial Case and even if it is so held, that would not vitiate the proceedings as the purpose of the Civil Rules and Orders is for classifying such cases for the purpose of submission of reports relating to disposal of cases. Therefore, the objection taken by the petitioners by citing Nazir Ahmed's case reported in (1936) 83 Ind. App. 372(PC) that a particular procedure laid down should be followed and any deviation from that procedure vitiates the entire proceeding is not tenable in the facts and circumstances of the present case. It has been pointed out that the decree-holders themselves made an application under O. 21 R. 35 and also under O. 21 R. 97 and, therefore, they cannot now, say that these rules have no application to the facts and circumstances of the case and contend that the writ was issued in the exercise of the inherent power of the Court that such relief by giving police help is given in an appropriate case.

2. The learned Advocate for the petitioners has referred to O. 21 R. 32 of the CPC and submits that the present case will come neither under O. 21 R. 35 nor under O. 21 R. 97 but under O. 21 R. 32, therefore there is no question of exercising inherent power of the Court to give relief in such a case. It has been further argued by the learned Advocate for the petitioners that nothing debars the decree-holders opposite parties from filing a fresh application for police help and for consequent relief even if the instant proceeding is held to be bad in law. I however agree with the submissions made by the learned Advocate for opposite parties that the present relief is not for delivery of immovable property and, therefore, O. 21 R. 97 or O. 21 R. 35 will have no application. Even O. 21 R. 32 will not apply inasmuch as that Rule contemplates a decree for specific performance of contract; of restitution of conjugal rights, of an injunction. The relief claimed in the instant case does not come within any of these categories. Therefore, I am inclined to hold that the relief prayed for can be granted only under the inherent power of the Court to see that its decree is executed.

3. The next point taken by the learned Advocate for the petitioners is that in any event the application is time barred as it must be made within 30 days of the resistance given. The Article 129 of the present Limitation Act corresponding to Article 167 of the old Limitation Act applies to the present case. On the other hand, the learned Advocate for the decree-holders opposite parties has contended that these Articles have no application, as already submitted the relief is given under the inherent power of the Court and, therefore there is no question of limitation. As I have already found that neither O. 21 R. 32 nor Rule 35 or R. 97 have any application to the present case but it is in the exercise of the inherent power that the relief is granted, therefore the question of limitation does not affect the present case.

4. Accordingly, I hold that the order passed by the learned Munsif granting police help to the opposite parties decree-holders is unassailable on any of the grounds taken by the learned Advocate for the petitioners.

5. The Rule is accordingly discharged with cost assessed at five gold mohurs.

6. Rule discharged.