Mammoo v. Krishnan

1. The 1st respondent herein, landlord of a building, took out execution of an order passed by the Rent Control Court for eviction of the 2nd respondent from that building. It is common case before me that though the lower court on 8-3-1977 ordered issue of warrant for delivery of the building and warrant was issued, the Amin returned the same without effecting delivery on account of obstruction caused by the 1st revision petitioner and his brother. Thereafter, on 18-7-1977, the 1st respondent filed an application for ordering issue of warrant for delivery of the building with the help of the Police it is his case that during 29-3-1977 to 10-7-1977 execution stood stayed by the order of the Sub-Court, Badagara, in I.A No. 634 of 1977 in CMA. No. 19 of 1977 preferred against dismissal of an application for temporary injunction, 1. A. No. 1181 of 1976 in O.S 137 of 1976 on the file of the lower court instituted by the sister of the 2nd respondent. The lower court ordered issue of warrant for delivery of the building with Police aid. The Amin returned the warrant so issued again reporting obstruction by the 1st revision petitioner. The revision petitioners filed an application for recalling the aforesaid warrant. The lower court dismissed the same by the order under revision. The points for consideration are as to whether the execution court has power to direct police aid to effect delivery of possession of property, and if it has, what is its nature, and what are the limitations, if any, thereon Before examining these questions it is necessary to advert to a preliminary objection raised on behalf of the 1st respondent that this CRP. is not competent. The submission is that under the proviso to S. 14 of the Buildings (Lease and Rent Control) Act, 1965, (for brevity, the Act) an order passed in execution is not appealable and is revisable by the court to which appeals ordinarily lie against the decisions of the Munsiff executing the order for eviction. It is not disputed, and rightly so, that the Munsiff executes an order passed under the Act not as a persona designata, but as one filling the office of Munsiff. If so the order under revision is a non appealable order passed by a Munsiff's Court and is revisable by this Court. At the most what could be said is that it is improper to rush to this Court invoking its revisional jurisdiction before the revisional jurisdiction conferred by the proviso on the court to which appeals ordinarily lie from the decisions of the Munsiff's Court, is invoked.

2. The Code does not by any of the provisions therein expressly confer power on the Court to seek the aid of the Police force whose duty and function it is, in the language employed by Lord Denning M.R in R. v. Metropolitan Police Commissioner (1968) 1 All E.R 763, ‘to enforce the law of the land’ not ‘as the servant of anyone, save of the law itself’. The learned Master of the Roles pointed out:

“The responsibility for law enforcement lies on him (Police Commissioner). He is answerable to the law and to the law alone.”

3. If there is a break down of law and order or there is likelihood thereof, or, there is breach of peace or such a situation is apprehended, irrespective of the source of information as regards it, the Police force has to be on the watch, making itself readily and easily available to restore law and order and to prevent breach of peace. That being so, when a Court issues a warrant for delivery of property to the Amin in exercise of its power to complete and carry into effect its decision, the Court should and ought to be able to inform the Police of any likelihood of breach of peace and violence it legitimately apprehends at the instance of the person bound by the decision, and to requisition Police aid to execute the decree peaceably. The police will have to give due respect to such a requisition as one coming from a court of law and should comply with the directions given by the Court. This power the Court exercises in order to promote justice and prevent injustice, and is therefore, referable to its inherent powers to make such orders as are necessary for the ends of justice and to prevent abuse of the process of the Court saved by S. 151 of the Code. In R. Audemma v. P. Narasimham (AIR. 1971 A.P 53) Ramachandra Rao J. disagreeing with the view of the Allahabad High Court in Gordhanlalji v. Maksudan Ballabh (AIR. 1918 All. 152) said on behalf of the Division Bench as follows:—

“If the police authorities are under a legal duty to enforce the law and the public or the citizens are entitled to seek directions under Art. 226 of the Constitution for discharge of such duties by the police authorities we feel that the civil courts can also give appropriate directions under S. 151 Civil P.C to render aid to the aggrieved parties for the due and proper implementation of the orders of Court. It cannot be said that in such a case the exercise of the inherent power under S. 151, Civil P.C is devoid of jurisdiction. There is no express provision in the Code prohibiting the exercise of such a power and the Court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for enforcement of the Court's order in a lawful manner.”

4. I am in respectful agreement with the views expressed by Andhra Pradesh High Court in the above mentioned decision.

5. The very foundation of the jurisdiction of the court to requisition police aid in order to discharge its function of giving effect to its decision being its inherent powers to which it can have resort only for the purpose of meeting ends of justice and to prevent abuse of process of court, the court can exercise this power only when it is ‘absolutely necessary’, and, note ‘no party has a right to insist the court to exercise it.’ Manoharlal v. Seth Haralal (AIR. 1962 SC. 527). In other words, decree holder cannot as of right claim police aid, nor shall the court requisition the same as a matter of course. The court, on a consideration of all the circumstances of the case and after giving due weight to all aspects, should be satisfied that it is absolutely necessary to requisition police aid in order to avert miscarriage or failure of justice or to prevent abuse of process of court.

6. S. 51(a) of the Code requires the Court to order execution of the decree by delivery of any property specifically decreed subject to such conditions and limitations as are prescribed, and Order XXI Rule 35 prescribes that where the decree is for delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, if necessary, by removing any person bound by the decree. A person not bound by the decree cannot, therefore, be removed from the property, and obviously, a property in his possession cannot be delivered over to the decree-holder. (The order of the rent control court put in execution is analogous to a decree for delivery of property, and therefore, I am confining the examination of the question to such cases without extending the same to cases falling under Rule 95 of Order XXL concerning delivery of possession of property purchased in court sale to the auction purchaser, though, perhaps, so far as the question of affording police aid to effect delivery is concerned both classes of cases may be governed by the same principles.) It is pointed out by Bachawat J. in Gaya Nath v. Amulya Chandra (AIR. 1957 Cal. 252 (254) that the English practice is that in an action for recovery of possession of property, a person who is not a party thereto can get himself impleaded as a party defendant before the decree; and, also after the decree when execution is taken out to enforce the decree on his electing to be added as a defendant to the action, in which case the judgment in the action and all subsequent proceedings including the delivery order will be set aside so far as it concerns him and the action will be tried as between the plaintiff and him. The Indian Code generally does not enable a stranger to the suit to come on the party array on his own motion without the consent of the plaintiff, and his remedy lies in resisting and obstructing his dispossession whereupon the decree holder has to move the execution court for removal of resistance and obstruction. The court is then called upon to decide the respective rights of the obstructor and the decree holder in respect of the property to deliver possession of which, warrant has been issued. It however the obstructor does not succeed in maintaining his possession over the property and he is dispossessed therefrom then his remedy in to approach the execution court himself complaining of such dispossession whereupon also the court is called upon to determine their respective rights. Under the Code as amended in 1976 neither the decree holder whose application for removal of obstruction has been dismissed, nor the obstructor whose complaint of dispossession has been thrown out can agitate their rights in a fresh suit, though, however, the decision is appealable as if it were a decree. Therefore, so far as one who is in possession of the immovable property ordered to be delivered over, in his own right and not on be half of the judgment debtor, is concerned, the Code recognizes his very valuable right to defend and maintain his possession by offering resistance and causing obstruction to his dispossession therefrom. That he cannot himself taking the initiative approach the Court before dispossession by an antedelivery-anticipatory-obstruction-petition is well settled by the decisions in George v. Varkey (1952 KLT. 660), Padmanabhan v. Narayanan (1955 KLT. 413) and Lekshmi Ammal v. Trav. Devaswom Board (1959 KLT. 458) An order to deliver possession of the property with police aid will jeopardise his right to offer resistance and to maintain his possession over the property, and therefore, before such an order is passed by the Court under its inherent powers, it is highly necessary that vise court is to be satisfied on sufficient materials, and, in the presence of the person who refuses to vacate the property and to remove whom police aid is sought for, and after affording him and opportunity to place his case, that the resistance is offered or obstruction is caused by a person, bound by the decree or on behalf of such a person, unless it be that such aid is sought for the removal of the judgment debtor himself or some one who is ex facie bound by the decree or one whose presence in the property is accountable only to its possession by the judgment debtor or some one ex facie bound by the decree, if there is the slightest doubt about these matters, and the court feels that the person to remove whom from the property, police aid is sought for may be in possession of it on his own account and in his own right and not on behalf of the judgment debtor or of some one ex facie bound by the decree, better counsel would demand that the court refrains from ordering police aid without an enquiry in the manner indicated above.

7. A passage from the decision in Gaya Nath v. Amulya Chandra (AIR. 1957 Cal. 253) can usefully be referred to here. It is:—

“An order for police help vitally affects all persons in actuai 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 likely to be evicted brevi manu fsom 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 it process is unlawfully obstructed and its process cannot be executed without such aid. But where there is a bona fide claim by an occupant that be is not bound by the decree and as such is entitled to resist eviction in execution of the decree the Court may and should decline to give such aid until his claim is negatived in appropriate proceedings; See Debendra Nath v. Parul Bala 88 Cal LJ 105 at pp 106, 107: (AIR. 1953 Cal 233 at p. 233) (L) and Sew Sankar Lan v. Bejoy Krishna Dutta, 57 Cal WN 65 at p. 66; (AIR. 1953 Cal 218 at pp. 218. 219) (M). The claimant is vitally affected by an order for Police help and is entitled to be heard on an application praying for such help. The Court has unfettered discretion and ample power to do justice. The court may examine any person it thinks fit and hear him. If necessary, the Court may direct notice to all persons in actual possession by advertisement or otherwise. The decree holder is under a duty to disclose full facts. An order for police help obtained improperly or by suppression of material facts is liable to be set aside. See Jagat Lakshmi Dasi v. Golam Hossain, 60 Cal WN 147, (N) Sew Sankar Lal v. Bejoy Krishna Dutta. 57 Cal WN 65 : (AIR. 1953 Cal 218) (M).

8. Relying on this case, and Sew Sankar Lal v. Bejoy Krishna (AIR 1953 Cal. 218) mentioned in the passage extracted above, that court in a later case Gopal Chandra v. S.K Jamsed (AIR. 1965 Cal. 51) said as follows:—

“It is now well settled by this Court that (1) the party, against whom an order for Police help is made, is entitled to notice and that (2) the bona fide nature of the claim and that whether the party is entitled as of right to be in possession, are relevant matters for consideration in exercise the Court's discretion to deal with the case for Police help.”

9. This takes me to a larger contention advanced by the learned counsel for the civil revision petitioners at one stage of the arguments, namely, that once the Amin returns the warrant for delivery reporting obstruction, another warrant for delivery should not be issued till the Court passes an order for removal of obstruction under Rule 98 on an application by the decree bolder under Rule 97. He relied on Bhagwat v. Kasturi (AIR. 1974 M.P 26) in support of this contention. I do not think that this decision supports the extreme position contended for, as is evident from the following passage therein:

“In this view of the matter, it must follow that if the decree-holder does not satisfy the Court that the person, who refuses to vacate the property, of which possession is to be given to him under the decree, is the judgment-debtor or a person bound by the decree, within the meaning of Order 21. Rule 35, the executing Court must stay its hand as soon as there is resistance offered or obstruction made by a third person,”

“Where the decree-holder neither makes a complaint under Order 21, Rule 97, nor is able to satisfy the Court that the person offering resistance or making obstruction is bound by the decree, the Court has no alternative but to stay its hands. It has no jurisdiction to oust the third person. The Court will only wait for the decree-holder to apply under Order 21, Rule 97. The decree-holder may or may not apply as he may be advised. If he does not apply, the matter will remain stayed. If he applies, the Court will make an enquiry and will pass necessary orders.”

10. This decision is authority only for the position that in such cases the court would not be justified in issuing another warrant without being satisfied that the obstructor is a person bound by the decree. Whatever b? the position so far as delivery under Rule 95 Order 21 is concerned, it seems settled that in cases falling under Rule 35 the court is competent to issue warrant for delivery even after a warrant so issued earlier had been returned without effecting delivery on account of obstruction. See S. Gnanappu v. T. Pillai (AIR 1957 TC 287), Kotayya v. Narayana (AIR. 1944 Mad. 60) and Muniammal v. T. Naicker. (AIR. 1962 Mad. 338). I hold that the decree-holder is entitled to apply for a warrant for delivery of property decreed in his favour despite obstruction when it was sought to be delivered over on an earlier occasion, and that the court is competent to issue afresh another warrant leaving the obstructor free to resist delivery again, if he 80 chooses, but before issuing another warrant, the Court should on sufficient materials be satisfied of a strong prima facie case that the obstructor is one bound by the decree. It is the case of the civil revision petitioners that the lower court has not applied is mind when it ordered issue of a second warrant for delivery and was not guided by the principles stated above; and that therefore they are entitled to have the same recalled by the lower court under its inherent powers. The order under revision does not disclose whether the lower court issued the second warrant for delivery with police help after being satisfied that the persons directed to be removed and who obstructed delivery are bound by the order of the Rent Control Court put in execution, and, if so, on what materials. Now, a second warrant has been issued for effecting delivery with police aid, and the civil revision petitioners have approached the court to have it recalled as per their E.A No. 424 of 1977, the feasible course to adopt is to set aside the order under revision and direct the lower court to dispose off that application keeping in abeyance the warrant issued till the disposal of it and guided by the principles stated above, and to pass appropriate orders on the basis of its decision thereon. I do so. This Civil Revision Petition is allowed to the above extent but without any order as to costs.

11. Allowed.