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  • Mohammad Noor, J.
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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner, as decree-holder, purchased a house belonging to the judgment-debtor at a Court sale and applied to the Munsif of Bettiah to be put into possession. A writ of delivery of possession had been issued but, on execution, the house was found locked. The learned Munsif declined to order breaking the outer door lock to put the petitioner (auction-purchaser) in possession, expressing the view that he lacked power to break open the lock. The Munsif requested the petitioner to show any law permitting him to do so. The matter was then brought before a higher court which reviewed the Munsif's order and the applicable provisions of Order 21 of the Code of Civil Procedure (CPC).

Legal Issues Presented

  1. Whether, under Order 21, Rule 95 of the CPC, a Court exercising a writ of delivery of possession in favour of an auction-purchaser is empowered (and obliged) to break open a lock and remove persons who refuse to vacate, in order to put the purchaser in possession.
  2. Whether the learned Munsif erred in limiting the commissioner to giving possession without permitting entry into the locked house, and in treating the delivery as merely a "formal dakhaldehani."
  3. What procedure should be followed where access to a sold house requires passing over land of a third person not bound by the sale and that third person obstructs delivery of possession.

Arguments of the Parties

Auction-purchaser / Petitioner

  • The petitioner, as decree-holder and auction-purchaser, sought delivery of possession under the writ issued by the Court; the record indicates she could have relied on Order 21, Rule 95 of the CPC to support an order for actual delivery of possession.
  • The petitioner's lawyer cited some old cases decided by the Calcutta High Court (not named in the opinion) in support of the petitioner's position.

Judgment-debtor / Opposite Party

  • Mr. Mitter, appearing for the judgment-debtor, raised that the house could not be approached without trespassing on lands belonging to a third person; this was presented as an objection relevant to access and delivery of possession.
  • The judgment-debtor did not actively resist the application before the higher court; as such, no costs were ordered against him.

Third-party Objector

  • An unnamed person, from the Munsif's order-sheet dated 15 March 1933, objected to delivery of possession on the ground that the property formed part of his "zenana house" and that the writ purported to be served on a portion of his own land. The Munsif described this objection as frivolous and proposed issuing a "formal dakhaldehani." The higher court treated this objection as raising issues that, if material, should be dealt with under the relevant rules of O.21 (R.97 or R.100).

Table of Precedents Cited

No specific case law precedents were named in the provided opinion.

The opinion refers to "some old cases decided by the Calcutta High Court" but does not identify or cite them; therefore no precedents are tabulated.

Court's Reasoning and Analysis

The court proceeded by examining the statutory provisions of Order 21 of the CPC and the practical effect of the Munsif's refusal to order entry into the locked house. Key aspects of the court's reasoning are as follows:

  1. Interpretation of O.21, R.95: The court quoted Rule 95 in full and treated it as a mandatory provision when the immovable property sold is in the occupancy of the judgment-debtor (or persons on his behalf). The Rule expressly empowers the Court, "on the application of the purchaser," to order delivery "by putting such purchaser, or any person whom he may appoint ... in possession of the property, and, if need be, by removing any person who refuses to vacate the same."
  2. Duty to perform the statutory mandate: The court reasoned that where the law enjoins a duty upon a Court to put an auction-purchaser in possession, it necessarily confers power to do everything reasonably necessary to perform that duty. If the house is locked such that the Court officer cannot enter, the Court must remove the obstruction — including directing the breaking of the lock — in order to fulfill the statutory duty under R.95.
  3. Rejection of a formalistic approach: The court criticized the Munsif's view that older Calcutta High Court cases (as cited by counsel) meant a difference in power between decrees directly for delivery and delivery following sale; the higher court found no distinction as to the Court's power to deliver possession. The Munsif's instruction to the commissioner to give possession "only under O.21, R.95" but simultaneously forbidding entry (and breaking the lock) was viewed as internally inconsistent and impracticable.
  4. Distinction between modes of delivery: The court explained that there are two distinct modes of delivery under Order 21 depending on who occupies the property:
    • If the judgment-debtor or persons on his behalf occupy the property, delivery must be by removing the judgment-debtor and putting the purchaser in possession (R.35 and R.95).
    • If the property is occupied by a tenant or other person entitled to occupy (i.e., not the judgment-debtor), delivery is by proclaiming possession (R.36 and R.96).
    In this case, as the record showed occupation by the judgment-debtor, delivery under R.95 (actual removal and putting the purchaser in possession) was required.
  5. Ancillary powers and contempt-like remedy: The court pointed out Order 21, Rule 98, which empowers the Court to summarily commit to civil prison for up to thirty days a judgment-debtor or person obstructing execution — referencing this as an additional power the Munsif could have invoked to defeat obstructive tactics.
  6. Procedure where access requires crossing third-party land: The court acknowledged the objection that access might require passing over lands of a third person not bound by the sale. It directed that, to avoid complications, the Munsif should instruct the executing officer to bring the matter to the Court's notice if a third party obstructs access. The Court indicated such objections could be investigated under O.21, R.97 or R.100, or, where necessary, by deputing a commissioner to prepare a proper map and decide whether independent access exists. If there is no independent access and the obstacle cannot be resolved under R.97/R.100, delivery of possession must stop and the auction-purchaser may have to pursue further relief in a separate suit.
  7. Practical directions to effect delivery: The court reasoned that an officer deputed for delivery should proceed expeditiously, ascertain boundaries according to the sale certificate, break any lock necessary to gain access, hand over movable properties found inside to the judgment-debtor or his authorised representative if present, and otherwise prepare a list and place such movables in safe custody to be claimed on proper application. Delivery remained subject to third-party objections under R.100.

Holding and Implications

Core Ruling: The Court directed that the learned Munsif must depute a suitable and reliable officer, with expedition, to proceed to the house and give possession to the auction-purchaser within the boundaries shown by the sale certificate, and that if access requires breaking any lock the officer is to do so.

Direct consequences for the parties (as ordered):

  • The Munsif is to immediately depute an officer to give actual possession to the auction-purchaser within the sale-certificate boundaries, breaking any locks if necessary.
  • Movable properties found inside the house are to be handed over to the judgment-debtor (if present) or to an authorised representative; if no such person is present, a list is to be made and the items kept in safe custody to be handed over on proper application.
  • Any third-party objection under Order 21, Rule 100 remains available; where access requires crossing third-party land and the objection cannot be resolved under R.97/R.100, delivery will be stopped and the auction-purchaser may pursue further remedies in a separate suit.
  • Reference was made to Order 21, Rule 98 as a power to punish obstructive conduct by summary civil imprisonment (up to thirty days) where appropriate.
  • No order as to costs was made because the judgment-debtor did not resist the application before the higher court.

Broader implications: The opinion enforces the practical and mandatory scope of Order 21, Rule 95 — emphasizing that Courts must use the powers necessary to effectuate delivery to an auction-purchaser who is entitled to possession. The opinion does not indicate that it is laying down a new legal principle beyond the application and clarification of existing rules of Order 21 CPC; it addresses the specific execution procedure and the duties of the adjudicating Munsif and executing officer in the circumstances described.

Signed in the text as: K.S.

Order accordingly.
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    Mt. Berunika Kuer v. Francis Thakur Opposite Party.

    1. This application is directed against an order of the Munsif of Bettiah who declined to put the petitioner in possession of a house (purchased by her at a Court sale) by breaking a lock at the outer door of the house. The facts are simple. The petitioner as decree-holder purchased a house belonging to the judgment-debtor. When she asked the Court to put her in possession of it a writ of delivery of possession was issued, but it was found that the house was locked. The learned Munsif thought that the law did not empower him to break open the lock in order to put the auction-purchaser in possession and he called upon her to show him any law under which he could do so. The auction-purchaser, in any opinion, had simply to draw the attention of the Court to O. 21, R. 95 of the CPC, and to its plain meaning. Her lawyer however cited some old cases decided by the Calcutta High Court, but the learned Munsif thought that they did not apply to delivery of possession to auction purchaser but to cases in which the decree itself is for delivery of possession as if there is any difference between the two as to the power of Court in the matter of delivery of possession.

    2. It is much to be regretted that the learned Munsif instead of doing everything in his power to put the auction-purchaser in possession of the house and to exercise his lawful powers in defeating the obstructive tactics of the judgment-debtor has passed an order which if upheld will bring the administration of justice into ridicule. It will be the easiest thing for judgment-debtor whose house has been sold to lock the house and thereby stop the Court from putting the auction-purchaser in occupation of the house. When a Court has sold a property of the judgment-debtor either to a stranger or to the decree-holder, it is morally and legally bound to do all that lies in its power under the provisions of the law to put the auction-purchaser in possession of the same. I fail to understand what further power beyond what he had under O. 21, R. 95 the learned Munsif wanted in order to enable him to direct the breaking open of the lock. O. 21, R. 95 of the CPC, runs thus:

    “Where the immovable property sold is in the occupancy of the judgment-debtor or of some persons on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under R. 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.”

    3. It is obvious that if the house is locked how can the Court put the purchaser in possession. When the law enjoins a certain duty upon a Court it gives the Court power to do everything which is necessary for performing that duty. Under the law the Court was bound to put the auction-purchaser in possession of the house, if necessary, by removing the judgment-debtor or any other person who might have refused to vacate the same and for doing so it was necessary for the Court officer to go into the house. If by the door of the house being looked the Court was obstructed from exercising the power vested in it by law it was the duty of the Court to remove that obstruction and carry out the mandatory provision of the law. The learned Munsif while refusing to order the breaking of the lock directed the commissioner deputed to deliver possession only under O. 21, R. 95. I am unable to understand this order. How could the commissioner give possession, under O. 21, R. 95 by putting the auction-purchaser into possession of the house without going into the house when the learned Munsif by his order stopped him from entering the house and decided that the lock could not be broken open?

    4. I am also unable to understand what other mode of delivery of possession was permitted in this case, that the learned Munsif directed the commissioner to give possession only under O. 21, R. 95. I have not the least doubt in my mind that it was the duty of the learned Munsif to direct the breaking of the lock and putting the auction-purchaser into possession of the house. So that the auction-purchaser may not have to come to this Court again. I wish to point out to the learned Munsif the provisions of O. 21, R. 98, so that if he finds that the judgment-debtor or any person on his behalf obstructs the due execution of the process of law issued by him he has the power of summarily putting the judgment-debtor or any person acting at his instigation into civil prison for a period of thirty days.

    5. Before I pass an order in this case I wish to refer to one matter though it is not directly before me. It appears from the order-sheet of the learned Munsif, dated 15th Match, 1933, that some person whose name is not clear from the order-sheet objected to the delivery of possession on the ground that the property in question was a part of his zenana house and that the writ showed that it was to be served on a portion of his own land. The learned Munsif here remarked that the objection was frivolous as the objector did not claim the property and that he would simply deliver a fomal dakhaldehani without which the applicant (meaning the auction-purchaser) could not sue for partition. I cannot understand the order. If by the writ of delivery of possession a third person is threatened with dispossession or dispossessed he has his remedy. If he obstructs the delivery of possession the Court on application of the auction purchaser can investigate it under O. 21,. R. 97 and if he is dispossessed he can have the matter investigated under R. 100. The order leads me to think that the learned Munsif is not quite clear in his mind as to what is a formal dekhaldehani and what is an actual dekhaldehani.

    6. He mentions the dekhaldehani asternal and then later calls it only under O. 21, R. 95. Under the law there are two modes of delivery of possession of a property, both when there is a decree for possession and when the auction-purchaser is to be given possession. These two modes do not depend upon the discretion of the Court, but depend upon the nature of the property of which possession is to be given.

    7. If the property is in occupation of the judgment-debtor or of some person on his behalf, etc., the possession is to be given; under one mode, namely, by removing the judgment-debtor and putting the auction-purchaser or decree-holder in possession of it: vide O. 21, Rr. 35 and 95. On the other hand, if the delivery of possession is of a property which is not in occupation of the judgment-debtor but it is in occupation of a tenant or other person entitled to occupy the same, the delivery of possession is to be given by proclaiming the possession of the decree-holder or auction-purchaser: vide O. 21, R. 36 or R. 96). In this case as it appears from the record there is no case that the property of which the auction-purchaser seeks possession is not in the occupation of the judgment-debtor himself, therefore the delivery of possession must be under O. 21, R. 95 and it will not be a formal delivery of possession as the learned Munsif seems to speak of it, but it will be a delivery of possession by removing the judgment-debtor or any person not entitled to continue in possession or who is holding it on his behalf, and patting the auction-purchaser in possession of it. Any person who objects to the delivery of possession and claims that he has a right to continue in possession in spite of the sale and that his right, if any, has not been affected by the sale, has, if dispossessed, his remedy. Mr. Mitter who appeared on behalf of the opposite party judgment-debtor had obviously no cause to show why this dakhal dehani should not issue.

    8. He, however, stated that the house in question could not be approached without trespassing into the lands belonging to a third person. That is a matter which does not concern the judgment-debtor. There is, however, some indication of it in the order-sheet and in order to avoid complications I direct the learned Munsif to issue specific instructions to the officer whom he deputes for delivery of possession under the orders which I propose to pass in this case that if the house which has been sold cannot be approached without passing through the lands of a third person not bound by the sale and this third person obstructs the delivery of possession the matter should be brought to the notice of the Court and the Court, if necessary, on the application of the auction-purchaser by deputation of a commissioner and getting a proper map prepared, should decide whether the objection in this respect is correct. If the objection is of such a nature that it can be decided under O. 21, R. 97 or R. 100, it will be so decided. If the objection cannot be so decided and there is no independent Access to the house in question the delivery of possession will be stopped, leaving the auction-purchaser to take such further steps in a proper suit as she is advised. Subject to this the order which I pass is this. The learned Munsif will depute, with as much expedition as is possible, a suitable and reliable officer to proceed to the house and give possession of it, within the boundaries as mentioned in the sale certificate (after carefully ascertaining it) to the auction-purchaser; and if in order to have access to the house in question it is necessary to break open any lock, that officer will do so. The properties found inside the house will be made over to the judgment-debtor if he is present, or to any person who is present on his behalf having been duly authorised by him to receive them. If neither the judgment-debtor nor anybody else on his behalf is present on the spot to receive the properties a list of them will be made and they will be kept in such safe custody as the learned Munsif may direct and will be made over to the judgment debtor on a proper applications made by him. The delivery of possession will be subject to any objection made by a third party under O. 21, R. 100. As the judgment-debtor did not resist this application I pass no order for costs.

    K.S

    9. Order accordingly.

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    Comments

    Mt. Berunika Kuer v. Francis Thakur Opposite Party.
    (Nov 21, 1933)