Dipak Kumar Munshi & Anr. v. Smt. Meera Chatterjee

G.N Ray, J.:— It appears that the opposite party Sm. Meera Chatterjee instituted a suit being. Title Suit No. 243 of 1977 for eviction of the petitioners. The said suit was decreed and the appeal preferred by the tenant petitioners being Title Appeal No. 382 of 1985 was also dismissed by the Court of appeal below. Against the said judgment and decree of the court of appeal below, the tenant petitioners preferred an appeal in this court being SAT No. 335 of 1986 and the said appeal has been admitted after hearing under Order 41 Rule 11 of the Code of Civil Procedure and is pending decision before this Court. An application for interim order was made in the said appeal but as it was submitted at the time of admission of the said appeal that during the pendency of the appeal before this court and before the hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure the landlord had executed the decree and had obtained possession of the disputed premises, the said application for interim order was not disposed of by this court but liberty was given to the tenant appellant to make proper application before the executing court for appropriate relief and recovery of possession until the disposal of the appeal before this court. It appears that thereafter the judgment debtor tenant made an application under S. 47 read with S. 151 of the Code of Civil Procedure before the executing court inter alia contending therein that the said decree was purported to have been executed in violation of the mandatory provisions of law and by resorting to illegal and unfair practice. It was inter alia prayed for by the judgment-debtor tenants that in the facts of the case the decree holder landlord should be directed to restore back the possession of the premises in question to the tenants.

2. The learned Munsif, 3rd Court, Alipore by order No. 14 dated 10th May, 1986 dismissed Misc. Case No. 28 of 1986 arising out of the said application under S. 47 read with S. 151 of the Code of Civil Procedure made by the defendant tenants. Against the said order No. 14 dated 10th May, 1986, the defendant tenants petitioners have made an application under S. 115 of the Code of Civil Procedure and the said revisional application in C.O No. 1681 of 1986 has been assigned to us by the learned Chief Justice. Both the revisional application and application for interim order in SAT No. 335 of 1986 have been heard analogously and are being disposed by the following judgment.

3. Mr. Saktinath Mukherjee, the learned counsel appearing for the petitioners has drawn our attention to the records of the executing court since called for by us after hearing the parties at length. Mr. Mukherjee has submitted that the decree of the court of appeal below was passed on 16th December, 1985 and long before the expiry of the period of limitation for preferring an appeal before this court against the said decree, the tenants petitioners made an application before the executing court on 8th January, 1986 for stay of the execution of the decree on the ground that the certified copy of the judgment and decree had not been made available to the defendant tenants for preferring the second appeal before this court. It may be noted here that on 19th December, 1985, an application for certified copy of the judgment and decree had been made by the defendant tenants. It appears from an endorsement of the learned Munsif made at the top of the left hand corner of the said application that the said application was held to be premature and was therefore rejected on the very date of making the application. It has been very streneously contended on behalf of the tenants petitioners that it is the usual practice in the Alipore Court that when such application for stay of execution is filed, the said application as a matter of routine is directed to be put up along with execution records and the same is considered on merits in the execution proceeding. It has also been contended by the petitioners that no intimation was given to the learned Advocate of the petitioners that on the very same date the learned Munsif had rejected the said application on the ground that the same was premature by giving a note on the top of the application itself. It has been submitted by Mr. Mukherjee that in the aforesaid circumstances the tenants had been entertaining a bona fide belief that the said application for stay was pending consideration and proper consideration of the same would be made by the learned Judge at the time of executing the decree. Mr. Mukherjee also contended that provisions of sub-rule 3 of rule 24 of Order 21 of the Code of Civil Procedure are mandatory and the date by which the decree will be executed must be specified by the learned executing Judge and failure to mention such date of execution will make the writ for delivery of possession unworkable and invalid Mr. Mukherjee has contended that prior to the amendment in 1976, sub-rule (3) of rule 24 of Order 21 provided that in the writ a day should be specified on or before which it should be executed. By an amendment of Calcutta High Court to sub-rule 3 it was added that a day shall also be specified by which it should be returned to court. In view of the amendment of sub rule 3 in 1976 it has been provided that failure to mention the date of return the process will not be invalid but the requirement to specify the date by the learned executing Judge in the process by which the process is to be executed is mandatory and the intention of the legislature that there should not be any relaxation in the matter of specifying the date by which it is to be executed is quite clear. Mr. Mukherjee has submitted that it will appear from order No. 2 dated January 27, 1986 passed by the learned executing Judge that the learned Judge directed for issue of a writ under Order 21 Rule 35 C.P Code fixing February 26, 1986 for service return (SR) but neither in the said order nor in the writ issued by him no date has been specified on or before which the decree is to be executed. Hence, such writ is inoperative and no effect an be given to the same. It also appears from the endorsement made by the Nazir in the said warrant or process that the bailiff was directed for service and return by 18th January, 1986. Such endorsement by the Nazir is erroneous on the face of it because the warrant was signed by the learned Munsif on 29th January, 1986 and as such there was no occasion for the bailiff to execute and return on 18th January, 1986. It appears that on the very next date viz. on 30th January, 1986, the decree was purported to have been executed by the bailiff and it appeals from the report of the bailiff that the judgment debtor tenants could not be found but a person on their behalf opened the door and thereafter had left the premises and after waiting for about an hour when the said person did not return, all articles found in the said premises were removed from the disputed premises and possession was delivered to the decree-holder. The process server has given a long list of articles removed from the disputed premises including steel almirah, ceiling fans, pumping machine, washing machince, refrigerator etc. It has been contended by the tenants petitioners that the report of the process server or the bailiff is absolutely false and nobody on behalf of the judgment debtors tenants was present but the lock of the said residential premises of the tanants had been broken by the judgment-debtors (?) in connivance with the bailiff in the absence of the judgment debtors and all valuable belongings of the judgment-debtors had been thrown in the wide passage of the said premises and possession of the said premises had been illegally delivered to the decree-holder by the bailiff of the said court. It has also been contended that in the Alipore Court which is the biggest and most busy court in West Bengal it was almost impossible to hand over the writ to the process server after endorsement by the Nazir on the very date when the learned Munsif had signed the writ viz. on 29th January, 1986 when the learned Judges usually sign such writs in the afternoon after other judicial works. In the instant case, the said defective writ signed by the learned Munsif on 29th January, 1986 appears to have been processed by the Nazir on the very same day and had been delivered to the bailiff with an endorsement for service and return on 18th January, 1986 and on the very next day i.e on 30th January, 1986 the delivery of possession of the disputed premises was purported to have been made by the bailiff. Mr. Mukherjee has drawn the attention of the court that the premises appertains to 396/1B, Keyatala Lane, Calcutta and no witness from the said Keyatala Lane or any other adjacent street or lane could be found by the bailiff. It appears from the bailiff's report that two persons, both residents of 22A Mandeville Gardens which is at a considerable distance from Keyatala Lane have witnessed such delivery of possession by the bailiff. Mr. Mukherjee has submitted that ??? the learned Munsif has not mentioned the date of execution, the mandatory provisions of sub-rule 3 of rule 24 of Order 21 have not been fulfilled and the said writ was defective and any execution made pursuant to such defective writ was illegal Mr. Mukherjee has also contended that the Nazir has given direction to the process server for service and return of the said writ by 18th January, 1986. On the face of such direction by the Nazir, the bailiff in the usual circumstance, should not have taken the said writ for execution but should have drawn the attention of the Nazir about the anomaly and should have got it corrected. He has submitted that only because at the behaste of the decree holder the said decree was sought to be executed at a breakneck speed by defying the mandatory provisions and committing various irregularities. He has submitted that a casual reference to such warrant should make it clear that such warrant had not been issued in the usual course but execution had been made illegally and with connivance with the officers of the court. Mr. Mukherjee has submitted that the learned executing Judge should not have rejected the said application for stay behind the back of the tenants without giving them any intimation whatsoever. He has also submitted that no order had been passed by the learned Munsif in the presence of the lawyer and no order was also passed in any order-sheet but the said application appears to have been rejected by passing an order on the application itself. As a result, the tenants were in complete darkness as to what happened to that application and they had entertained a bona fide belief that the said application for stay would be taken up for hearing when the decree would be put to execution as is usually done in other cases. Mr. Mukherjee has also contended that in the said application for stay made on 8th January, 1986, it was specifically mentioned that the tenants bad intended to prefer an appeal before this court and an application for certified copy had also been made for that purpose. It was only unfortunate that the learned Munsif issued the warrant to the bailiff to give possession of the disputed premises on 29th January, 1986 which was long before the expiry of the period of limitation for preferring an appeal before this court. Mr. Mukherjee has submitted that the landlady has resorted to sharp practice and has abused the process of the court in purporting to execute the decree illegally and with material irregularity. In the circumstances the revisional application should be allowed and the decree holder should be directed to restore to the judgment debtors the possession of the disputed premises.

4. It has been contended by the learned counsel for the decree holder opposite party that the decree having been put to execution within two months from the date of the decree of the court of appeal below, no notice was required to be given to the judgment debtor. It was the duty of the judgement debtor to keep proper vigil and to make proper application for stay in the execution proceeding. The application for stay was made at a point of time when the decree was not put to execution. Hence there was no question of staying the execution. The learned Munsif was therefore justified in rejecting the application for stay as premature. The learned counsel has disputed the contention that in Alipore Court such application is put up for order along with the execution records. It has been contended that if the judgment debtor or the learned Advocate had cared to cause enquiry about the fate of the application for stay, he would have ascertained that the stay application had been rejected on the very date of filing the same. It was also contended that the learned Munsif has specified the date by which execution of the decree and return of process had to be made and February 26 was mentioned as the date for service of the process and return of the same. In the writ issued by the learned Judge, February 26 was also mentioned for return of the process after execution. Hence there was no gross irregularity in the issue of writ. The learned counsel has also submitted that it is not necessary that witness of the execution must be resident of the same area. Two respectable persons had witnessed the execution and they were also residents of near about place and there is no allegation or material against such witnesses. The learned counsel has therefore submitted that the impugned order rejecting the application under S. 47 read with S. 151 C.P Code is quite justified.

5. After considering the respective contentions of the learned counsel for the parties it appears to us that in the instant case the decree was executed within an unusually short time. The decree was put into execution on 24th January and by 30th January the decree was executed. The warrant was signed by the learned Judge on 29th January and it appears that on the very same date the same was received by the Nazir who endorsed the writ and handed over the same to the bailiff. Although in the absence of any other cogent material it may not be possible to hold that the officers of the court had connived and had acted in collusion with the decree holder, we are inclined to hold that the circumstances and the breakneck speed in which the writ was issued and delivered to the bailiff appears to be quite unusual and intriguing and likelihood of a collusion cannot be absolutely ruled out. Be that as it may, the writ issued to the bailiff is not valid because the mandatory provision of specifying the date on or by which the decree is to be executed has not been mentioned by the learned Judge. Order No. 2 dated 27.1.1986 passed in the Title Execution Case does not mention any date by which the writ is to be executed but it has been only stated. “Issue writ u/O. 21 r. 35 CPC fixing 26.2.86 for SR”. In the writ actually issued by the learned Judge date of return on 25.2.86 was only mentioned but no date of execution was specified. There is, therefore, clear violation of the mandatory provision of Order 21 rule 24, sub rule (3) C.P Code. The writ accordingly was invalid and unworkable. It has been held by this court and other High Courts that beyond the date specified for execution of the writ, the writ cannot be executed and resistance by the judgment debtor is not illegal. The Supreme Court in the case of Smt. Mathri v. The State of Punjab reported in AIR 1964 SC 936 has held that the warrant for delivery of possession ceases to be executable after expiry of the date fixed for execution. If the writ does not bear any date on which the decree is to be executed the writ becomes unworakable and invalid. If a reference is made to sub-rule (3) of rule 24 of Order 21 as it stood before amendment in 1976 and as it stands after such amendment it will be evident that prior to amendment the date by which the process was to be executed was required to be specified. There was no mention in the sub-rule (3) that date of return was to be specified but a reference to rule 25 of the Order 21 indicates that both the date by which the process was to be executed and date by which the process was required to be returned to the executing court should be mentioned in the process. The amendment to sub rule (3) by this court however made it obligatory that the executing court should also mention the date by which the process was to be returned. After amendment in 1976 it has been specifically provided that in the process, both the dates namely the date on or before which the process is to be executed and the date by which the process is to be returned to the executing court should be specified but it has been provided for that failure to mention the date by which the process is to be returned will not make the process void. When the legislature has amended sub rule (3) and it has been provided for that both the aforesaid dates should be specified and it has been further provided that failure to specify the date of return will not make the process void, it is quite apparent and evident that non mentioning of the date on or before which the process is to be executed must tender the process in valid and void. Mere mentioning of the date of return of the process cannot, in our view, salvage such void writ or process. It is unfortunate that it escaped the attention of both the learned Judges issuing the writ and the Nazir that the writ was defective and unworkable and such lapse may be presumably due to exereme haste in which the decree was sought to be executed. The learned Judge has not considered the contention of the judgment debtors about the invalitity of the writ for not mentioning the date on or before which the decree was to be executed. It appears that the learned Munsif has disposed of the contention of the judgment-debtors by making a sweeping observation that there was no serious or material irregularity. It appears that the bailiff in his report has stated that “one person” had opened the door of the flat in question and had left the premises. The name of such agent of the judgment-debtors has not been ascertained by the bailiff because it is not his respect that the said person had declined to disclose his name or identity. It is reasonably expected that the bailiff will ascertain the name and particulars of the person who had allowed the bailiff to execute the decree on behalf of the judgment-debtors more so when the judgment debtors were not present. Anyway, the writ of delivery of possession being invalid the decree could not have been executed on the basis of such unworkable and invalid writ. We therefore, allow the revisional application and set aside the impugned order of the learned Munsif rejecting the application under S. 47 read with S. 151 C.P Code made by the judgment-debtors petitioners. We allow the said application of the judgment-debtors and direct the decree-holder opposite party to restore possession of the decretal premises to the judgment debtors petitioners within two weeks from today. In view of the order passed in the revisional application, the application for interim order made in S.A.T No. 385 of 1986 is disposed of to the following effect that the decree holder opposite party is restrained from executing the decree appealed from till the disposal of the said S.A.T No. 335 of 1986 and she is also restrained from interfering with the possession of the judgment-debtors of the disputed premises after such possession is restored back to the judgment debtors in terms of the above order passed in the revisional application in C.O No. 1681 of 1986. There will be no order as to cost in both the applications.

6. Let a copy of this order countersigned by the Assistant Registrar (Court) be handed over to the judgment debtors petitioners on an undertaking given by them to apply for a certified copy.

7. Monoranjan Mullick, J.:— I agree.

Application allowed; restoration of possession directed, execution of decree stayed.