Lingaraj Tripathy vs Agadehi @ Taramani Tripathy And
2021 Latest Caselaw 9242 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP No.1360 OF 2019

                 Lingaraj Tripathy                       ....           Petitioner
                                           Mr. Digambara Mishra, Advocate
                                          -versus-
                 Agadehi @ Taramani Tripathy and         ....        Opp. Parties
                 others


                       CORAM:
                       JUSTICE K.R. MOHAPATRA

                                       ORDER

Order No.                             03.09.2021
 3.         1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the order dated 11th February, 2019 (Annexure-3) passed by learned Civil Judge (Junior Division), Nayagarh in Execution Case No.2 of 2013 (arising out of T.S. No.67 of 1994), whereby he refused to recall the order dated 11th September, 2017 directing the Petitioner-Decree Holder (D.Hr.) to deposit the cost of deployment of Police force for execution of the decree.

3. It is submitted by Mr. Mishra, learned counsel for the Petitioner that vide order dated 11th September, 2017, learned executing court while entertaining an application under Order XXI Rule 35 C.P.C. filed by the Petitioner-DHr. directed that '.......Further as there is an apprehension by the DHR that JDR shall cause breach peace at the time of delivery of possession of the suit land, the S.P. Nayagarh be informed to intimate this court the total one day cost of ¼ APR force who shall be deputed to be remained present at the spot on the date of delivery of possession of the suit land. After receiving

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information from S.P. Nayagarh regarding one day cost of ¼ APR force, the DHR shall be required to deposit the same to get police help for execution of the decree. Hence, this petition is allowed and issue letter to the S.P. Nayagarh for the above purpose. Put up on 16.10.17 for awaiting intimation S.P. Nayagarh." The Petitioner being aggrieved filed an application to recall the order dated 11th September, 2017, which was rejected holding that since the order has already been passed upon hearing learned counsel for the parties, the same does not require any re-consideration. He further submits that such a direction is against the rule of law. It is the duty of the State to uphold the majesty of the court. If the order passed by the learned executing court is accepted, then the poor litigants like the Petitioner will not be in a position to enjoy the fruit of the decree, if the Judgment Debtor (J.Dr.) obstructs execution thereof. In support of his case, he relied upon the decision of Allahabad High Court in the case of Gopal and others -v- Amar Jeet Singh and others, reported in AIR 2019 ALL 132, wherein it has been held at paragraph-14 as follows:

"14. In the view of the Court, maintenance of law and order in the society is a paramount duty of the State. The court has power to seek police help for enforcement of its decree or order. Therefore, in absence of any specific legal provision enabling the police to raise a Bill on the Court for supply of police help to enforce court's decree or order, requiring the decree holder to sustain the expenses for police help would not be appropriate because if, for helping the Court to enforce its decree or order, money is demanded by the police then a situation may arrive where no poor person would ever be able to have the fruits of a decree or order passed in his favour. Such a situation may result in failure of judicial system."

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He also relied upon a decision of the Hon'ble Supreme Court in the case of Rahul S. Shah-v-Jinendra Kumar Gandhi and others, reported in 2021 SCC Online SC 341 in which the Hon'ble Supreme Court at pagraph-42 issued guidelines to be mandatorily followed by the Courts in dealing with suits and execution proceedings. It reads as follows:

42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below- mentioned directions:

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third

2. party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

4. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree, pertaining to

7. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.

8. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.

9. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any

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stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

11. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term "...in name of the judgment- debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

14. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.

15. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.

16. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts." (emphasis supplied)

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4. He, therefore, submits that the executing court while taking Police assistance for execution of the decree must not saddle the cost of deployment of the Police personnel on the parties to the execution proceeding and prays for setting aside the impugned order and to remit the matter back to learned executing court with a direction to execute the decree by deploying APR force without saddling the cost of such deployment on the D.Hr.

5. The case law cited by learned counsel for the Petitioner makes it obligatory on the executing Court to seek for Police assistance, whenever it feels appropriate and expedient for hassle free execution of decree. The parties to the execution proceeding should not be burdened with the cost of deployment, if in the facts and circumstances of any given case it is not so required.

6. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that the suit is of the year, 1994 and the CMP is pending before this Court since 2019. Further, if this Court awaits response from the Opposite Parties by keeping this matter pending, there will be further delay in the execution proceeding. It further appears that the case law cited by Mr. Mishra, learned counsel for the Petitioner were not placed before learned executing court while adjudicating the petition for recall of the order dated 11th September, 2017. In the meantime, the Hon'ble Supreme Court has formulated the guidelines to be followed by the Court while dealing with the civil suits and execution proceedings.

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7. In that view of the matter, this Court feels that these developments should be brought to the notice of learned executing court to reconsider the submission made by Mr. Mishra, learned counsel for the Petitioner-D.Hr. to recall the order dated 11th September, 2017.

8. Accordingly, this CMP is disposed of with a direction that in the event the Petitioner files an application to reconsider the Petition for recall of the order dated 11th September, 2017 passed by learned Civil Judge (Junior Division), Nayagarh in Execution Case No.2 of 2013 (arising out of T.S. No.67 of 1994) before learned executing court within a period of two weeks hence along with certified copy of this order, he shall do well to consider the same keeping in mind the decision in the case of Gopal and Rahul S. Shah (supra).

9. Till a decision is taken in the said petition, as aforesaid, if filed within the stipulated time, order dated 11th February, 2019 passed by learned Civil Judge (Junior Division), Nayagarh shall be kept in abeyance till disposal of such petition, which shall be subject to result of the order to be passed in the said petition.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

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