Calcutta High Court (Appellete Side)
Md. Izhaar & Ors vs The State Of West Bengal & Ors on 18 August, 2023
Form No. J.(2)
Item No.2
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON:18.08.2023
DELIVERED ON:18.08.2023
CORAM:
THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 560 of 2023
With
I.A. No. CAN 1 of 2023
Md. Izhaar & Ors.
Vs.
The State of West Bengal & Ors.
Appearance:-
Mr. Asis Bhattacharya
Ms. Maloti Biswas .........for the appellants
Mr. Tanmoy Mukherjee
Mr. Souvik Das
Mr. K. Raihan Ahmed
Mr. Rudranil Das .........for the respondent no.5
JUDGMENT
(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)
1. This appeal is at the instance of a judgement-debtor/resistor challenging
an order dated March 20, 2023 passed by a learned Single Judge in W.P.A.
5402 of 2023.
2. By the order impugned, the authorities of the Shibpur Police Station was
directed to deploy appropriate police force on the date and time mentioned
in the said order. The bailiff of the Civil Court was also directed to deliver
possession, as ordered by the Civil Court on the date and time mentioned
in the said order.
3. The 5th respondent along with Tapeshwar Chowdhury and Maheshwar
Chowdhury filed a suit being Title Suit No.546 of 2019 before the learned
Civil Judge (Senior Division), 3 rd Court at Howrah. The said suit was
decreed ex parte on September 29, 2021. The decree was put into
execution giving rise to Title Execution Case No.16 of 2021. The executing
court directed the bailiff to deliver possession in favour of the decree
holders. However, the bailiff was resisted and upon an application filed by
the decree holders under Rule 208 of the Civil Rules and Orders, the
executing court directed the Nazir to execute the decree through Process
Server with the help of police. Since the possession could not be delivered
an application for breaking open the padlock was filed by the decree
holders. The executing court allowed such application thereby authorising
the bailiff to break open the padlock in any of the rooms with police help.
The appellants claim to have filed a Miscellaneous Case under Order IX
Rule 13 of the Code of Civil Procedure being Misc. Case No.86 of 2022
praying for setting aside the ex parte decree dated September 29, 2021
passed in Title Suit No.546 of 2019. The prayer for stay of execution at the
instance of the appellants herein, however stood rejected by an order dated
January 10, 2023.
4. The 5th respondent, pursuant to an order passed by the executing court,
deposited the police cost for the purpose of obtaining possession by
executing the decree. Alleging inaction on the part of the police, the 5 th
respondent filed an application under Article 226 of the Constitution of
India. The writ petition was allowed by the order impugned.
5. Being aggrieved, the judgement-debtor/resistor in order to resist the
execution of the eviction decree has approached this Court by filing this
intra-Court mandamus appeal.
6. Mr. Bhattacharya, learned advocate representing the appellants drew the
attention of the Court to the plaint of the eviction suit being Title Suit
No.65 of 2023 filed by Mina Devi and others against the appellant no.1
herein praying for his eviction from the property mentioned in the schedule
to the plaint and contends that the schedule of the property mentioned in
Title Suit No.65 of 2023 is identical to the decreetal property involved in
Title Suit No.546 of 2019. He submits that the Civil Court has passed an
order of status quo in respect of possession in Title Suit No. 65 of 2023. He
further submits that since the executing court is in seisin over the matter
relating to execution of the decree and there is a dispute with regard to
identification of the decreetal property, the learned Single Judge in exercise
of its jurisdiction under Article 226 of the Constitution of India ought not to
have passed the impugned order.
7. Mr. Mukherjee, learned advocate representing the decree holder/5 th
respondent submits that the decreetal property and the schedule of the
property of Title Suit No.65 of 2023 is different. He further submits that
the decree holders of Title Suit No.546 of 2019 are not parties in Title Suit
No.65 of 2023. Accordingly to Mr. Mukherjee, pendency of the Title Suit
No. 65 of 2023 has no bearing in the execution of the decree passed in Title
Suit No.546 of 2019.
8. Heard the learned advocates for the parties and perused the materials
placed.
9. The records reflect the following factual position:- The decree for eviction in
Title Suit No. 546 of 2019 was passed as far back as on September 29,
2021. The said decree was put into execution giving rise to Title Execution
Case No. 16 of 2021. The learned executing court on an application filed
under Rule 208 of the Civil Rules and Orders passed an order on February
8, 2022 directing the Nazir to execute the decree through Process Server
with the help of police. The executing court also passed a direction
authorising the bailiff to break open the padlock in any of the rooms with
the police help.
10. The contention of the learned advocate for the appellants that since the
Title Suit No.65 of 2023 is pending, the writ Court ought not to have
passed the impugned order cannot be accepted for the reasons stated
hereinafter.
11. Firstly, as would be evident from plaint of the Title Suit No.65 of 2023, that
the suit property is a 1st floor flat at Holding no.60, Kazi Saiful Alam Lane,
Police Station - Shibpur, District - Howrah whereas the decreetal property
in Title Suit No. 546 of 2019 is a self-contained residential flat being part of
a property situated within Howrah Municipal Corporation Holding No.61,
Kazi Saiful Alam Lane. It is, therefore, evident that the properties involved
in Title Suit No.65 of 2023 is not same and identical with the decreetal
property of the Title Suit No.546 of 2019. That apart, the decree holders of
Title Suit No.546 of 2019 are not parties in Title Suit No.65 of 2023.
Therefore, pendency of Title Suit No.65 of 2023 as well as any orders
passed in connection thereto cannot have any impact on the execution of
the decree passed in connection with Title Suit No.546 of 2019.
12. Now, the question arises as to whether the learned Single Judge could
entertain a writ petition praying for a direction upon the police authorities
to implement the order passed by the civil court.
13. Article 226 of the Constitution of India states that the High Court shall
have the power to issue to any person or authority including any
Government directions, orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo-warranto and certiorari or
anyone of them for the enforcement of any of the rights conferred by Part -
III and for any other purpose. It follows therefrom that the first part of
Article 226 (1) of the Constitution empowers the High Court to pass orders,
directions or writs for protection of the fundamental rights. The second
part of Article 226(1) empowers the High Court to enforce the legal duty of
any person or authority. The expression "for any other purpose" used in
Article 226(1) of the Constitution of India has been interpreted by the
Hon'ble Supreme Court in the case of The Calcutta Gas Company (Prop)
Limited Vs. State of West Bengal & Ors. reported at AIR 1962 SC 1044
to mean the enforcement of any legal right and the performance of any legal
duty. The rights of the private parties qua immovable property, which are
civil in nature have been decided by the Civil Court of competent
jurisdiction by passing a decree for eviction against the appellant nos. 1
and 2. The executing court passed an order authorising the bailiff to break
open the padlock and deliver possession of the decreetal property in favour
of the decree holders. The 5th respondent/decree holder have a legal right to
take delivery of possession of the decreetal property in terms of the order
passed by the executing court with police help. Though, Mr. Bhattacharya,
learned advocate for the appellants would contend that a Civil Revision
application at the instance of the appellants is pending before a learned
Single Judge challenging the order of rejection of the prayer for stay of
execution case, mere filing of such revisional application cannot be a
ground for stalling the execution of the decree. It is not in dispute that the
police authority is under a legal duty to obey and/or enforce and
implement the orders passed by the Civil Court. The 5 th respondent has a
legal right to take delivery of possession in terms of the order of the Civil
Court and the respondent police has a legal duty to implement the order of
the Civil Court. Merely because of the fact that an execution case is
pending, that cannot, however curtail the power of the High Court under
Article 226 of the Constitution of India to issue a writ or direction to the
police authority within the State to enforce the order passed by the Civil
Court, which is a very wide power.
14. Therefore, in our considered view, the learned Single Judge was right in
entertaining the writ petition at the instance of the decree holders and
issuing a direction upon the authorities of the Shibpur Police Station to
deploy appropriate police force for the purpose of assisting the bailiff in
executing the decree.
15. The decree holder/5th respondent herein has already deposited the police
cost amounting to Rs.1,05,761/- as submitted by Mr. Mukherjee, learned
advocate appearing for the respondent no.5.
16. In view thereof, the direction passed by the learned Single Judge regarding
deployment of police force is not interfered with by this Court. However,
since the time within which the order passed by the executing court for
delivery of possession was to be executed with police help stood expired for
the reasons as aforesaid, the time stipulated by the learned Single Judge
for deployment of appropriate police force is extended till 4 p.m. of August
25, 2023.
17. The Commissioner of Police, Howrah Police Commissionerate is directed to
issue appropriate instructions to the Officer-in-Charge, Shibpur Police
Station being the 4th respondent in this appeal to deploy appropriate police
force in terms of the directions passed by the learned Single Judge.
18. The appeal and the application stand disposed of with the modification as
indicated hereinbefore. Since the Misc. Case being No.86 of 2022 praying
for setting aside of the ex parte decree dated September 29, 2021 is still
pending, this Court makes it clear that the applicants in the said misc.
case will be at liberty to avail all the remedies available under the Code of
Civil Procedure, in case the said misc. case is allowed by the civil court.
19. No costs.
20. Urgent photostat certified copy of this order, if applied for, be furnished to
the parties expeditiously upon compliance of all legal formalities.
(HIRANMAY BHATTACHARYYA, J.)
I agree.
(T.S. SIVAGNANAM)
CHIEF JUSTICE
Pallab/KS AR(Ct.)
