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High Court Of Calcutta
Pratap Kumar Ray
DWARIKANATH CHOWDHURY - Appellant
Versus
SADANANDA CHOWDHURY - Respondent
C. O. 237 Of 2002
Decided On : 04/25/2002
RULE 208 - POLICE HELP - ORDER 21 RULE 97 - PRINCIPLE OF AUDI ALTERAM PARTEM - NATURAL JUSTICE - APPLICATION FOR POLICE HELP - HEARING OF JUDGMENT DEBTOR - RIGHT TO BE HEARD - DUE PROCESS OF LAW - ARTICLE 21 OF THE CONSTITUTION OF INDIA - CONSTITUTIONAL RIGHT - ILLEGALITY OF EX-PARTE ORDER - JURISDICTION OF EXECUTING COURT - ADJUDICATION OF APPLICATION UNDER ORDER 21 RULE 97 OF THE CIVIL PROCEDURE CODE, 1973.
Fact of the Case:
The judgment debtor challenged the order of the lower revisional court, which upheld the order of the executing court dismissing the judgment debtor's application to recall the order of police help granted in favor of the decree holder in execution of the decree. The judgment debtor argued that the order was passed ex parte without hearing him and that the executing court did not examine the bailiff to ascertain the existence of an emergency situation.
Finding of the Court:
The court held that the application for police help should have been filed under Order 21 Rule 97 of the Code of Civil Procedure, which provides an opportunity of hearing to the person concerned who resisted the bailiff in executing the writ of the court. The court further held that Rule 208 of the Civil Rules and Orders, which was relied upon by the decree holder, did not provide for a hearing to the judgment debtor and was in conflict with the principle of natural justice. The court also held that the executing court erred in not examining the bailiff and in passing the order of police help without being satisfied about the existence of an emergency situation.
Issues: 1. Whether the application for police help should have been filed under Order 21 Rule 97 of the Code of Civil Procedure or Rule 208 of the Civil Rules and Orders? 2. Whether Rule 208 of the Civil Rules and Orders violates the principle of natural justice? 3. Whether the executing court erred in not examining the bailiff and in passing the order of police help without being satisfied about the existence of an emergency situation?
Ratio Decidendi: 1. The court held that the application for police help should have been filed under Order 21 Rule 97 of the Code of Civil Procedure, which provides an opportunity of hearing to the person concerned who resisted the bailiff in executing the writ of the court. The court reasoned that Rule 208 of the Civil Rules and Orders, which was relied upon by the decree holder, did not provide for a hearing to the judgment debtor and was in conflict with the principle of natural justice. 2. The court held that Rule 208 of the Civil Rules and Orders, which was relied upon by the decree holder, did not provide for a hearing to the judgment debtor and was in conflict with the principle of natural justice. The court reasoned that the principle of natural justice is imbedded in all procedural laws save and except where such principle is explicitly prohibited. In the instant case, there was no explicit provision under Rule 208 refusing the right of the judgment debtor and/or a third party who would resist the execution of decree and /or resisted execution of decree, to be heard before facing any order of police help. 3. The court held that the executing court erred in not examining the bailiff and in passing the order of police help without being satisfied about the existence of an emergency situation. The court reasoned that the executing court was required to examine the bailiff for satisfaction as to whether there was a grave emergency as would justify the prayer of the decree holder for police help.
Final Decision: The court set aside the impugned order of the lower revisional court and the order of the executing court granting police help. The court directed the executing court to hear the application for police help as an application under Order 21 Rule 97 of the Code of Civil Procedure, 1973 and to adjudicate the same following the procedural law as laid down under Order 21 of the said Code.
( 1 ) -IN this application under Article 227 of the Constitution of India, defendants/petitioners have challenged the Order dated 10th December 2001 passed by learned 7th Court of Additional District Judge at Alipore in Civil Revision No. 398 of 2001 whereby and whereunder Civil revisional Application was dismissed and the order dated 20th June 2001 passed by learned Civil Judge, Senior Division, 5th Court at Alipore in title execution Case No. of 1989 was affirmed whereby learned Civil Judge, Senior Division aforesaid dismissed the application of the judgment debtor who prayed for recalling the order of police help as was allowed in favour of the decree holder in execution of the decree upto entertaining the application under rule 208 of the Civil Rules and Orders of the High Court of Calcutta. Though this application in fact is a second revisional application challenging the order of lower Revisional Court under the guise of Artricle 227 of the Constitution of India, which as per settled legal position of the Court is entertainable only in rarest to rare cases, the point of law as urged before this Court, this Court has considered the same as rarest to rare cases and accordingly this application under Article 227 is maintainable. A basic constitutional point is involved in this matter namely principle of audi alterem partam that is the natural justice principle, which is the basic fundamental law in terms of the constitutional mandate whether has applicability under rule 208 aforesaid. For appreciation point of law, the factual matrix of the case in short is required to be considered first.
( 2 ) AFTER tooth and nail contest even up to the apex Court an eviction decree was crystallized in favour of the plaintiff opposite parties herein. It was placed for execution under title execution Case No. 6 of 1989. Judgment debtor initially resisted such execution by filing application under section 38 of the Code of Civil Procedure, taking jurisdictional point, but same was rejected by the learned Executing Court below and order was passed to execute the writ of possession through Court against which a Civil Revisional case was filed and same faced dismissal. Judgment debtor filed an application under rule 208 of Civil Rules and Orders of the High Court at Calcutta hereinafter refer to for brevity as Civil Rules and Orders alleging, inter alia, that the judgment debtor since resisted. The Court beliff to take possession of the suit premises in pursuance of the order of the Court resulting a breach of peace, necessary police help would be allowed to execute the decree for recovery of possession. This application was heard ex-parte by the learned executing Court below and an order dated 28th February 2001 granting police help was passed for the purpose of execution of the writ. An application for recalling the said order dated 20th August 2001 was filed by the judgment debtor, contending, inter alia, that the said order dated 28th February, 2001 passed by learned Executing Court was an ex-parte order without even service of copy of said application and on other ground that beliff was not examined with reference to his report in which he alleged submitted that the judgment debtor resisted the beliff under threat of dire consequences. It was further contended in that application for recalling of the ex-parte order granting police help that the application was not maintainable as there was a specific provision under the Code of Civil Procedure under Order 21 rule 97 to deal with the situation as alleged in the application by the decree holder and the said provision provides opportunity of hearing to the judgment debtor who allegedly opposed and/or resisted the beliff to execute the writ regarding delivery of possession. This application was rejected by the learned Executing Court, holding, inter alia, that under the aforesaid rule 208 of Civil Rules and orders, there was no question of hearing the judgment debtor before pa
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