Order 21 Rule 97 of the C.P.C. empowers the court to grant police help for execution of a decree even in the absence of resistance or obstruction, and the power to pass 'such other order' under Clause (b) of sub-rule (1) of Rule 98 of Order 21 is not controlled by the provision for detention in civil prison under sub-rule (2).

The judgment of the Court was as follows :––

Heard the submission of the Learned Senior Advocate Mr. Asoke Kr. Sen Gupta being assisted by Mr. Samirendra Mohan Chowdhury and the Learned Senior Advocate for the Caveator-opposite parties, Mr. Bhaskar Bhattacharjee being assisted by Mr. Harish Tandon. Considered the materials on record.

2. The judgment debtors, as petitioners, by the instant revision, have challenged order No. 105 dated 1.3.96 passed in Misc. Case No. 1314/1986 which has been registered before the Learned Judge, 9th Bench, City Civil Court, Calcutta, upon an application under Order 21 Rule 97 of the C.P.C. read with Rule 208 of the Civil Rules and Orders, praying for police help on the ground that the decree could be executed because of resistance and there was apprehension of breach of peace. The said prayer has been granted by the Learned Judge by the order impugned and the judgment debtors have challenged that order in this revision.

3. In this back-drop Mr. Sen Gupta contended that there is no provision under Order 21 Rules 97 and 98 of the C.P.C. for granting police help and the same can be granted only under Rule 208 of the Civil Rules and Orders on fulfilment of certain conditions as enshrined under sub-rule (1) of Rule 208 of the said Rules. In support of his contention Mr. Sen Gupta relied on a Single Bench decision in the case of (1) Mrs. Ajit Roy v. Jnendra Nath Dey reported in AIR 1975 Calcutta 433 and particularly upon Paragraph 8 of that decision. At page 435 in Paragraphs 7 and 8 of that decision it has been held as follows :––

"The prayer for police help may be made by the decree-holder either in an application under Rule 97 and/or 98 of Order 21 of C.P.C. or separately without filing such application or before any specific obstruction made by a particular person". Para-8

But Rule 208 can be used only in exceptional cases and not too readily when the Court will be of opinion that unless police help is given there will be danger to the public peace on account of the execution of the decree. This application for police help is a discretionary matter to the Learned Judicial Officer who deals with it. So, it is evident that even before the obstruction, Order 21 Rule 97/98 of the C.P.C. can be resorted to and Rule 208 of the Civil Rules and Orders is available only upon obstruction or resistance. Mr. Sen Gupta also relied on another decision of a Single Bench in the case of (2) Gopi Krishna Majhi v. Judisthir Dey reported in AIR 1995 Calcutta 263. In that decision the Learned Single Judge held that where the resistance has been offered in executing the decree by a third person, in that case, Order 21 Rule 35 read with Section 151 of the C.P.C. is not available and when the resistance is offered by a judgment debtor, in that case Order 21 Rule 35 is available.

4. Mr. Bhattacharjee, on the other hand, contended that even in view of the decision of the Learned Single Judge in the case of Mrs. Ajit Roy (supra), an application under Order 21 Rule 97 or 98 is available even in a case where there was no resistance.

5. Heard the submissions of the Learned Advocates for the parties and considered the materials on record. Order 21 Rule 97 of the C.P.C. provides as follows :––

"(1) Where the holder of a decree for the possession of immovable property of the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction."

So, this provision specifies as to the persons who are entitled and who are not entitled. Sub-rule (2) of Order 21 Rule 97 specifies the power of the Court, that is, upon filing of such an application the Court shall proceed to adjudicate upon the application according to law contained therein, meaning contained in the C. P. C., Rule 98 of Order 21 has got two parts. Sub-rule (1) of Rule 98 provides as follows:––

"(1) Upon the dete