The conditions precedent for grant of police aid under Rule 208 of the High Court Rules and the interpretation and application of Order 21 Rule 97 C. P. C. in cases of resistance to execution of a decree.

( 1 ) THE legal representatives of the original judgment debtor Satya Narayan Mussaddi have filed this present revision. The facts leading to this revision are as follows :-the opposite party decree holder instituted the title suit No. 2104/80 and 2105/80 against the original judgment debtor Satya Narayan Mussaddi and one Tilok Chand Mussaddi for eviction and others ancillary reliefs. In the aforementioned suit both the defendants contested the same by filing the written statement. The suit was however, decreed on contest against them. The original judgment debtor preferred an appeal in this court being Appeal No. 225 and 226 of 1987 which was also dismissed. Pursuant to the original decree passed by the Trial Court the opposite party levied execution against the original judgment debtor. The revisionist allegedly received an information that the opposite party decree holders started execution against him and substituted the name of the legal representatives of the original judgment debtor without service of notice. It is stated by the petitioner that since the legal representatives of the original judgment debtor Satya Narayan Mussaddi had not been made parties in appeal before this Court : the final judgment passed by it is a nullity and consequently, the opposite party decree holders are not legally competent to proceed with the execution case. It is stated that the original judgment debtor Satya Narayan Mussaddi died on 8. 6. 91 and the judgment having been passed after his death i. e. on 22. 7. 91 is patently an illegality which is unenforceable in law. The learned trial court overrulling the objection of the petitioner allowed the prayer of the opposite party decree holders for the grant of police aid.

( 2 ) MR. Roy Choudhury contended in support of the revisional application that the Bailiff who was deputed for effecting delivery of the suit property has not stated in his evidence that there was disturbance of public peace. It is further contended that even in the petition filed by the opposite party decree holder there is no mention of disturbance of public peace. Another question was mooted by the revisionist that though the application has been captioned under section 208 of the High Court Rules, it should have been filed under order 21 Rule 97. The application should have been considered under the provision of Order 21 Rule 101 C. P. C. In face of this inherent defects the learned executing court could not have mechanically granted police aid to the decree-holders.

( 3 ) MR. B. Banerjee, the learned counsel appearing for the decree-holder opposite parties, while repelling the contention of the petitioner highlighted that the Bailiff has stated that there was beach of peace: while he made an attempt to deliver the suit properties to the decree holders.

( 4 ) UNDISPUTED facts emerged from the contention of the parties are as follows: that the decree holder obtained a decree for recovery of Khas possession of the suit premises at 129a Muktaram Babu Street by evicting the defendants their men, agents and servants therefrom. The present Title Execution Case No. 98/85 had been levied by the decree holders. The defendants preferred an appeal against the said decree before this court in F. A. No. 226 of 1987 which was stayed till the disposal of the appeal. The appeal was dismissed on 22nd July, 1991 and allowed the original judgment debtors to vacate the suit premises within two months therefrom. One of the defendants Satya Narayan Mussaddi who was the predessor- in-interest of the revisionist allegedly died on 8. 6. 91 leaving Smt. Magit Bal Mussaddi, Smt. Annapurna Mussaddi, Sew Kumar Mussaddi and Smt. Mina Devi Kedia as his legal heirs and representatives who were substituted as judgment debtors 1 (a), 1 (b), 1 (c) and 1 (d) respectively. The legal representatives of the original judgment debtor Satya Narayan Mussaddi were noticed in the execution case and accordingly had been substituted. The conte