An Executing Court can grant police help to the decree holder under Section 151 of the Code of Civil Procedure, 1908 on an application under Order 21 Rule 35 of the Code but not to a first party who has set up a third party right.

( 1 ) THE present revisional application is directed against Order No. 17 dated 9. 12. 94 passed by the learned 2nd Judge, City Civil Court at Calcutta in Title Execution Case No. 55 of 1994. In the connected execution proceeding, an application for police help was filed under the caption of Section 151 of the Code of Civil Procedure. The decree holder filed the said petition stating, inter alia, therein that he got a decree for recovery of possession of the suit premises. On 9. 11. 94 a bailiff of the Court accompanied by the decree holder went to the suit premises but the bailiff could not deliver possession due to the resistance given by the judgment debtor, his son Gopi Krishna Maji and the daughter-in-law Sm. Shikha Maji. The petitioner-decree holder has asserted that he is entitled to get the decree executed and to recover possession of the suit premises through police help. The learned Judge in the Trial Court by making a reference to a decision reported in 92 Calwn 507 and another decision reported in All India Rent Control Journal, Vol. II, 1984 at page 212 has proceeded on the footing that an Executing Court can grant police help to the decree holder under Section 151 of the Code of Civil procedure.

( 2 ) MR. Saktinath Mukherjee, learned Advocate appearing on behalf of the opposite parties, has contended that in terms of Order 21 Rule 35 (1) of the Code of Civil Procedure, possession is capable of being delivered by removing any person bound by the decree, Mr. Mukherjee has laid special stress on the word and/or expression "by removing any person bound by the decree" and he has further submitted that the decree is straightway not only capable of being executed but the person found in possession, who is representing the judgement-debtor, can also be removed by an order of police help. In support of his submission, Mr Mukherjee has referred to and relied upon the decision cited in the impugned order, namely, the case of Md. Salim v. Md. Assim and Ors. , reported in 92 Calwn 507 and in tune with the ratio of law expounded in the cited decision, this court has been attempted to be persuaded to follow the same by holding that an executing court can grant police help to the decree holder under Section 151 of the Code of Civil Procedure on an application under Order 21 Rule 35 of the Code without taking recourse to the provisions of Order 21 Rule 97 thereof. The prosecution of remedy by Section 151 C. P. C. has been considered to be an aid to execution and not execution itself. A distinction has been sought to be made between the nature of an application under Section 151 C. P. C, and air application under Order 21 Rule 97 of the Code. Mr. Mukherjee has further referred to the other decision, namely, in the case of Gangaram v. Debi Singh and Anr. , reported in All India Rent Control Journal, Vol. II, 1994 p. 212 and in the said judgment it has been held that a decree holder seeking police help by an application under Section 151 of the Code is entitled to get that remedy. Mr Mukherjee has further relied upon a Full Bench decision in the case of Sm. Usha Jain and Ors. v. Manmohan Bajaj and Anr. , reported in AIR 1980 MP 146 and has contended that Order 21 Rule 97 C. P. C, is merely permissive and not mandatory and a decree holder can not be forced to resort to it against his will and may even apply for a fresh warrant under Order 21 Rule 35 C. P. C. No enquiry into the title and possession of a third party at any rate is necessary either under Rule 35, Rule 36, Rule 95 or Rule 96 of Order 21 of the Code when the decree bolder applies for recovery of possession. The omission by the Executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. If such a party is dispossessed according to the said judgment his remedy is under Order 21 Rule 100 C. P. C. for dispossession or to file an independent suit claiming his title therein. The Court has further o