JUDGMENT :

BIBHAS RANJAN DE, J.

1. The order dated 19.12.2021 in connection with Misc. Case No. 48/18 is under challenged. Both the learned advocate Mr. Ganesh Shrivastava and Ms. Anyasha Das appeared on behalf of the parties to this application.

2. Specific case of the petitioner is as follows:- petitioners/plaintiffs filed a title suit no. 22 of 2000 before the Learned Civil Judge, Senior Division/Small Causes Court at Sealdah with a prayer for declaration and partition of the Premises no. 1/1, Kundu Lane, Kolkata 700037 against the opposite parties/defendants. Preliminary decree was passed in the suit declaring 2/3rd share in favour of the petitioners/ plaintiffs and 1/3rd in favour of the opposite parties/defendants. Thereafter, Partition Commissioner was appointed for effecting partition by metes and bounds. But when commissioner visited the premises he was restrained by the op/defendants and denied entry into the suit premises. Partition Commissioner filed application for police assistance and at the time of hearing opposite parties/defendants undertook not to restrain Commissioner. Again Commissioner visited the suit property for effecting partition metes and bounds and submitted his final report along with the plan before the Learned Trial Court. Accordingly, final decree was passed on 05.09.2016 and petitioners/plaintiffs filed an application for execution of the final decree with the police help, if required. Learned Judge issued a writ to the bailiff for delivering possession of the suit property with the help of survey passed Advocate Commissioner. On 06.07.2018 bailiff visited the suit property but bailiff was obstructed by the opposite parties/judgments debtors. The bailiff returned the writ for delivery possession unexecuted apprehending serious breach of peace and sought for assistance of police.

3. Further case of the, petitioners/decree holders is that an application under Rule 208 of civil rules and orders was filed against the opposite parties/judgment debtors in Title Execution Case No. 3 of 2017and said application was registered as Misc Case No. 48 of 2018. Opposite parties/judgment debtors contested the said misc case by filing written objection contending, inter alia, that bailiff did not visit the suit premises on 06.07.2018 and also denied any resistance. In course of hearing bailiff and learned advocate Commissioner testified that without police assistance writ of delivery of possession could not be executed. On the other hand opposite party no. 1 and 2 deposed on behalf of the judgment debtors that bailiff did not visit the suit property on 06.07.2018.

4. After hearing both sides and considering evidence Learned Executing Court returned his findings as follows:

“Having regard to the submission from both sides and evidence on record and the final decree and sketch map, I do not find any other way of entrance into the suit premises except the narrow common passage which ends in blocking of concrete wall. It is also reflected from the final report of Ld. Advocate Commissioner. It has been seen from the said final report that the said entrance was blocked by the defendant. Now the question which comes before this court is whether in Misc. Case of police help, can court pass the sue moto order for destruction or removing of the said concrete blockage. In my opinion, the prayer for police help filed by the DHR/petitioner is premature even if police order is passed, police cannot enter into the suit premises and can not break the said boundary wall. So far, no such prayer made by the DHR in this case. There is also ambiguity in the report of the bailiff and other witnesses. In this situation, allowing police help will serve no purpose unless there is order for destruction of the said entrance gate in the main execution suit. So far no such prayer made by petitioner is considered and rejected being premature. The Misc. Case 48 of 2018 is thus disposed of. Both parties are directed to take steps in the original e