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High Court Of Calcutta
Jyotirmoyee Nag
SUBOL CHANDRA DUTTA - Appellant
Versus
CHIMAI CHARAN NANDY - Respondent
Civilrule 192 Of 1978
Decided On : 03/29/1979
POLICE HELP - EXECUTION OF DECREE - ORDER 21 RULE 32, 35, 97 - INHERENT POWER OF THE COURT - LIMITATION ACT, ART. 129 - SUMMARY
Fact of the Case:
Decree-holders filed an application for police help when the judgment-debtors obstructed the commissioner from executing the writ of delivery of possession of the suit property. The judgment-debtors opposed the application, claiming that they did not obstruct the commissioner and that the commissioner's report was false.
Finding of the Court:
The court found that the judgment-debtors had obstructed the commissioner and the process server in the discharge of their duties and that without police help the writ could not be executed. The court also found that the relief sought was not for delivery of immovable property and, therefore, Order 21 Rule 97 or Order 21 Rule 35 did not apply. The court further found that the relief could be granted only under the inherent power of the Court to see that its decree is executed.
Issues: 1. Whether the application for police help was maintainable under Order 21 Rule 32, 35, or 97 of the Civil Procedure Code? 2. Whether the application was barred by limitation under Article 129 of the Limitation Act?
Ratio Decidendi: 1. The court held that the application for police help was not maintainable under Order 21 Rule 32, 35, or 97 of the Civil Procedure Code because the relief sought was not for delivery of immovable property. 2. The court held that the application was not barred by limitation under Article 129 of the Limitation Act because the relief was granted under the inherent power of the Court.
Final Decision: The court discharged the rule with costs assessed at five gold mohurs.
Certainly. Based on the provided legal document, here are the key points:
The court emphasized that it possesses inherent power to ensure the execution of its decrees, including granting police assistance when necessary [judgement_subject].
The application for police help was filed because the judgment-debtors obstructed the execution of the writ of delivery of possession of the property. The court found that the judgment-debtors had indeed obstructed the process and that police assistance was essential for executing the writ (!) .
The court clarified that the relief sought was not for the delivery of immovable property, and therefore, specific procedural rules related to delivery of possession or specific performance did not apply. Instead, the relief was granted under the court’s inherent power to execute its decrees (!) .
The application was not barred by limitation under relevant law because the relief was granted under the court’s inherent power, which is not subject to the same limitation periods (!) .
The court discharged the rule with costs, affirming that the order granting police help was valid and within the court’s jurisdiction (!) .
The procedural objections raised regarding the failure to start a Miscellaneous Judicial Case or deviations from procedural rules were rejected, as the purpose of the relief was to facilitate the execution of the decree, which falls within the court’s inherent authority (!) .
The court noted that the relief did not fall within specific categories outlined in procedural rules, reinforcing that such relief could only be granted through the court’s inherent power (!) .
Overall, the decision upheld the court’s authority to grant police assistance for executing decrees when obstruction occurs, and procedural irregularities did not invalidate the order (!) .
If you need further analysis or specific legal advice, please let me know.
( 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 judgment-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 judgment-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 judgment-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 judgment-debtors. Accordingly, the learned Munsif relying upon the report submitted by the commissioner was satisfied that the judgment-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 judgment-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 Order 21 Rule 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. Judical 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 Order 21 Rule 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) 63 Ind. Apa 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 Order 21 Rule 35 and also under Order 21 Rule 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 g
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