An application under section 151 of the CPC is not maintainable to restore possession after the decree has been satisfied and the Executing Court has become functus officio.

Soumen Sen, J.

1. The order dismissing the application filed by the decree-holder under section 151 of the Code of Civil Procedure for direction upon the Deputy Commissioner of Police (North), Calcutta to provide police assistance to the Bailiff in restoring possession of the suit room after issuing a writ for recovery of possession is the subject-matter of challenge in this revisional application. In order to decide the legality and propriety of the impugned order, some of the relevant facts are required to be taken into consideration. The petitioner/plaintiff decree-holder instituted a suit for eviction of one Dukhiram Bose in the City Civil Court at Calcutta being Ejectment Suit No. 591 of 1984. The defendant appeared and contested the said suit. Upon contest a decree was passed in favour of the plaintiff on 18th September, 1995. Dukhiram being aggrieved by the said decree preferred an appeal and the Appellate Court by an order dated 23rd November, 2001 affirmed the decree of the Trial Court. In the meantime and during the pendency of the appeal, the plaintiff filed an application for execution of the decree being EjectmeExecution Case No. 299 of 2000. In the execution proceeding, the learned Executing Court by an order dated 14th May, 2006 directed the Bailiff to execute the decree by taking over possession and giving delivery of possession to the decree-holder of the immovable property forming the subject-matter of the suit. The Bailiff, however, could not comply with the said order in view of the resistance being put by the original defendant/judgment-debtor.

2. In view of the aforesaid, the decree-holder filed an application under Order 21 Rule 97 of the Code of Civil Procedure read with Rule 208 of the Civil Rules and Orders for police help to execute the said decree. The said application was registered as Misc. Case No. 177 of 2008. The Executing Court by an order dated 4th May, 2009 allowed the said application for police help and fixed 7th July, 2009 for delivery of possession of the decreetal property by the Bailiff with police help.

3. In the meantime, the original defendant Dukhiram died on 6th June, 2009. Consequent thereupon, the petitioner filed an application under section 50 of the Code of Civil Procedure read with section 151 of the Code for bringing on record the legal representatives of the deceased judgment-debtor in the execution proceeding, namely, Smt. Niva alias Sankari Bose (wife), Sri Joydeb alias Gopal Bose (son) and Smt. Jhumpa Das (married widow daughter).

4. The learned Judge allowed the said application.

5. Thereafter, the said legal representatives preferred a Misc. appeal being Misc. Appeal No. 29 of 2009 against the order passed by the learned Executing Court on 4th May, 2009 allowing the application for police help. The said appeal was, however, dismissed on 23rd November, 2009. While dismissing the said appeal, the Appellate Court made the following observations:--

It is alleged in the name of the instant appeal that after passing the impugned order dated 4.5.09, the original judgment-debtor, namely, Dukhiram Bose, died on 6.6.09 and accordingly the present appellants have preferred the instant appeal and as such the said order dated 4.5.09 is not binding upon the present appellants.

There is no dispute that the impugned order was passed before the death of the Judgment-debtor/O.P of the said Misc. case No. 177/08 and more than one month after passing the said impugned order dated 4.5.09, the present appellants have preferred the instant Misc. appeal. So, admittedly the appellants are the legal heirs and representatives of the deceased O.P. of the said Misc. case and as such the order dated 4.5.09 is very much binding upon the appellants of this case.

Considering all these facts and circumstances, I find it difficulty to appreciate the grievances as ventilated on behalf of the present appellants and in my view, the ld. Trial Court is perfectly justified in allowing the appellants' applica