Amar Singh vs Om Parkash

K. Kannan, J.

CM No. 25742-CII of 2013

Application is allowed, as prayed for.

Civil Revision No. 7019 of 2013

The revision is against the order dismissing an objection taken before the Executing Court when the decree for recovery of possession was put in execution. The objections taken were that the decree on the basis of the sale deed obtained by the decree holder was non est and void and that the objector/judgment debtor was a bona fide purchaser of the property in the year 1973 and had better title. Admittedly, at the time when the objection was filed before the Executing Court, there had been an appeal pending against the decree granting the relief of recovery of possession. There was no order of stay of recovery of possession by the appellate Court, the Court passed further process in execution and the judgment debtor, who is aggrieved, is the revision petitioner before this Court. The decree holder''s right to the property had been obtained as a purchaser in auction in execution of a decree obtained by only Punjab Kaur for compensation for property acquired from her by the Government. The disputed property was attached and claimed by Punjab Kaur as belonging to Government and in the auction held in execution of the decree, the property was claimed to be purchased by the decree holder on 27.03.1990. The purchaser''s petition for delivery appears to have been dismissed as time barred, however, having been given a liberty to file a suit for recovery of possession. The instant decree put in execution was the result of such suit filed by the decree holder. Incidentally, the petitioner before this Court the judgment debtor had himself filed a suit for injunction on 15.09.1998 on a plea that the suit property did not belong to the government and though it had been originally made the subject of acquisition through a notification u/s 4(1) of the Land Acquisition Act, it had been later released from acquisition. Both the suits were tried together and the judgment delivered on 15.02.2012 securing a relief of recovery of possession for the decree holder and dismissing the suit filed by the judgment debtor for injunction. An application had been filed by the judgment debtor independently before the District Court where execution had been levied for recovery of money by Punjab Kaur and property purchased by the decree holder. The judgment debtor was, therefore, literally opening yet another forum for adjudication regarding his title, notwithstanding the fact that he had earlier filed a suit for injunction. When the case was still pending, the District judge, in the miscellaneous application filed by the judgment debtor as a third party, had allowed the application giving him protection from being dispossessed and for restraint against alienation by the court auction purchaser. Against this order passed, it appears that there is a revision filed by the decree holder in Civil Revision No. 4348 of 2006. Against an interim order passed by this Court on 08.01.2007, the judgment debtor had filed a SLP bearing No. 6284 of 2007 to the Supreme Court and the Court passed a cryptic order directing status quo to be maintained in all respects until the disposal of the proceedings before the High Court. It is not very clear from the order whether the Supreme Court was informed about the pendency of the civil suit for injunction filed by the judgment debtor and the suit for recovery of possession filed by the court auction purchaser. The civil revision is still pending before this court.

The objection of the judgment debtor to the execution of the decree for delivery of possession is that the Supreme Court had granted the status quo to be maintained and further process in execution could not have been therefore levied. The counsel would also point out that the decree holder has actually carried out the delivery proceedings by flouting all norms of process of execution. The learned counsel would point out to an order issued by the Executing Court on 10.04.2013 where it had recorded the fact that the warrant of possession issued had not been returned and a fresh warrant had been issued on 19.07.2013. On 19.07.2013, again a site plan was directed to be filed and a fresh warrant was issued on 27.08.2013. On 27.08.2013, the Court issued a fresh warrant for 05.10.2013. The counsel would point out that the Court recorded the fact that on 27.08.2013, warrant had not been returned as executed and when it was issuing a fresh warrant, the bailiff could not have carried through the process of execution independently on the basis of first warrant issued and purported to deliver possession of property with the assistance of police.

The learned senior counsel appearing on behalf of the respondents would join issues on the contentions raised with reference to the alleged unlawful acts and the irregular procedure adopted by the bailiff by pointing put that when the court had passed an order on 19.07.2013 directing the delivery to be carried out and posted the case for 27.08.2013, it was merely setting the process in execution in place and the actual order of delivery was issued by the court on 19.08.2013. While the order passed by the court on 19.07.2013 was a judicial order entered in the court docket, the order issued on 19.08.2013 was a direction to the bailiff of the revenue department administratively to deliver possession with authority granted to the bailiff to remove any person bound by the decree, if the person refused to vacate the same. The learned senior counsel would refer me to the consecutive proceedings which had token place from then on: the first letter from the Kanungo seeking for police protection by addressing a letter to the SHO, Ludhiana, and a letter forwarded to the Tehsildar by the Deputy Commissioner on 27.08.2013, the letter of the Tehsildar to the Sub Divisional Magistrate and forwarding the letter of request by the Kanungo to provide police help and the Sub Divisional Magistrate marking the letter to the Deputy Commissioner, Ludhiana for police help and the District Magistrate issuing on 09.09.2013, a direction to the Commissioner of Police for giving the police protection and the order of the District Magistrate on 19.09.2013 recording the fact that there was likely to be a quarrel at the place and for providing assistance for delivery of possession. There have been also letters from the Kanungo to the SHO on 05.10.2013, a letter to the Patwari Halqa on 11.10.2013 and the letter of actual delivery said to have taken place on 19.08.2013.

All these documents admit of no ambiguity that after the order was passed on 19.07.2013 directing the delivery of possession to be issued for 27.08.2013 and when the case was also posted to 27.08.2013, the process in execution could be said to have commenced. I will have no difficulty also in taking note of the fact that the warrant to the bailiff of the revenue department had been issued on 19.08.2013 to deliver possession of the property. This has got noted from the Collector on 20.08.2013. From then on, from the several letters which the Kanungo and the other revenue officials have written to the Magistrate and still later to the District Commissioner have gone on independently with no semblance of court intervention.

While the legitimacy to actions leading to the delivery is sought to be given by the learned senior counsel appearing on behalf of the respondents, the counsel for the petitioner brings before me the brazen conduct of the revenue officials and the court bailiff in securing to themselves certain powers which ought to normally reside only with the court. The learned senior counsel refers to me to the Division Bench ruling of the Calcutta High Court in Smt. Usha Ghosh Vs. Rabindra Nath Das and others, that dealt with the powers of the court and the manner of how the process in execution shall proceed. This decision has been rendered in the particular context of the process of execution under Order 21 Rule 24 CPC and the circumstances when the police help could be rendered for securing execution process to fruition. It would be relevant to therefore reproduce the said provision:--

"24. Process for execution.--(1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

(3) In every such process, a day shall be specified on or before which it shall be executed and a day shall also be specified on or before which it shall be returned to the court, but no process shall be deemed to be void if no day for its return is specified therein."

Dealing with this provision and the exclusive jurisdiction of the Executing Court to seek for police assistance, and that it cannot be executed by the Executing Magistrate in purported exercised of powers u/s 144 Cr.P.C., the Division Bench has held as under:--

"24.........(A) decree passed by a Civil Court (is sought to be) executed by the order of the Executive Magistrate who ordered for execution of the decree not under the Civil Procedure Code. If the decree was not executed in accordance of the order of the executing court, it does not come within the scope of S. 47 of the Code. The execution was on the face of it void and in our view, the same can be challenged wherever it is sought to be enforced, it is not necessary that the same has to be set aside."

Referring to the interpretation given by Order 21 Rule 24 CPC, I must immediately observe that beyond the order for delivery which the Court passed on 19.07.2013 and the later order of delivery ordered on 27.08.2013 to await delivery by 05.10.2013, the Court has not been even informed one bit that there was any serious apprehension of law and order at the site and that the delivery was not possible to be effected without securing police assistance. The decree holder literally allowed himself a free hand to decide on police assistance and the revenue official''s munificent interventions and did not so much wait for securing court direction. What has transpired between 19.08.2013, when the warrant was issued to the bailiff till the date when delivery was said to have been effected on 11.10.2013, have been without court''s directions and wholly by the interventions of the Kanungo, of the SDO, of the Deputy Commissioner and of the Commissioner at the level of the bailiff himself. This is rather a dangerous way of securing execution with the police taking an active part with no direction from the court and the police taking orders from the Executive Magistrate for execution of the civil court decree. It is in this context that the reference to the judgment in Usha Ghosh (supra) about when police protection could be taken to would also be required to be examined. The Bench said in para 29 as follows:--

"29.......It was the duty of the executing court to direct the bailiff not to go to the police station and on the contrary, to direct and not to take police help unless specifically an order was passed by the executing court in accordance with the provisions of the Code of Civil Procedure. The action cannot be said to be bona fide and in accordance with law. It is not a case of irregular exercise of power. It was a case of forcible dispossession by police force flouting the provisions of law. It was not a case of executing the decree in accordance with law....."

I would respectfully find myself in respectful agreement with the view taken by the Calcutta High Court and find that the delivery in the manner done was a gross excess and impermissible. The bailiff has of course taken care to ensure that all the movables were put in proper custody and an inventory taken. To that extent, the manner of securing back what is legitimately due to the judgment debtor is protected. The counsel for the petitioner states that after delivery, the property was razed to ground and the buildings which existed have been removed totally. The learned senior counsel for the respondents would point out that all these constructions were made subsequent to the court auction sale and the judgment debtor cannot claim any equities. I am not now making any adjudication of whether the buildings were constructed after the court auction purchase or not, but only to point out that removal of building has been made even without express orders of court.

In a suit for recovery of possession when there was a decree, there is a right of appeal both on facts and law and in normal situations, I would reckon that the order of stay would also be a matter of course except for certain conditions that the appellate court might impose. The defendant perhaps deceived himself into thinking that the miscellaneous application No. 90 of 2002 which he had filed before the District Court which is the subject of challenge in Civil Revision No. 4348 of 2006 itself will protect his interest, where he had obtained a relief of dispossession by court order and that no further order was necessary. The party ought to have also reasonably assumed that when the Supreme Court was passing an order allowing for retention of status quo to be issued as regards the possession till the revision was disposed of, the further process in execution itself ought not to have proceeded without the disposal of the civil revision. I cannot understand as to how the judgment debtor allowed himself a luxury of adjudication through an independent application filed before the District Court (which allowed for court auction sale to the decree holder in land acquisition proceedings) when he had elected to file a suit for injunction before a civil court. The issue of adjudication which he was forcing through the application before this Court was again directly a point in issue in the civil suit filed by the judgment debtor for recovery of possession which was being directed to be taken up jointly with the suit for injunction. Order 21 Rule 104 makes any order passed under 101 or 103 to be subject to result of a pending suit. Indeed, the suit for injunction and suit for possession were pending on the day when the application was filed by the judgment debtor before the District Court. By the very nature of things, any order that is passed by the District Court under Order 21 Rule 97 CPC or in any revision against such an order to this Court or upto the Supreme Court must necessarily be suborned to a civil court adjudication. The decree holder who has filed the Civil Revision No. 4348 of 2006 ought to have brought to the attention of the court that the relief of injunction granted by the District Court in the miscellaneous application and which was ordered to be retained till the disposal of the revision was to be modified by the decree of recovery of possession passed by the civil court. The proper procedure ought to have been to allow for a disposal of Civil Revision No. 4348 of 2006 as unnecessary and allow for the decree for recovery of possession to prevail. As of now, there is an order of the Supreme Court directing the status quo to be maintained with regard to possession. The decree holder ought not to have put even the decree in execution without withdrawing his own civil revision or taking appropriate orders in Civil Revision No. 4348 of 2006 on the basis of the decree that had been passed as a subsequent event and ensured that there was no conflict between the decision of the Supreme Court and the execution process which he was levying before the trial Court. The decree holder has allowed for a needless breach of the order of the Supreme Court when his own decree could have proceeded coach and four to secure the fruits of the decree which he had obtained if the revision petition had been disposed of with liberty to proceed in execution. Though the obstruction to the delivery which is made the subject of revision is itself meritless, in so far as the judgment debtor was pleading for an adjudication on the very issues which the trial had already adverted to, there being no dispute with reference to the identity of the property. Though the judgment debtor was trying to point out that the court auction sale was invalid in the manner that it made reference to khatoni number to which there was no proper identification of the property which was sold, I must take that the objection was not any longer available after the decree was passed for recovery of possession. The rejection of the objection for delivery would not require to be modified but the ultimate process by which delivery was taken cannot be sustained.

I have already observed that from the time when the property was taken possession, there has been a change in the nature of property in that the buildings that were admittedly the judgment debtors have been razed to ground. I direct that no further construction shall be put up in the property and the judgment debtor shall be at liberty to apply to the appellate Court where the appeal is said to be pending against the decree for recovery of possession for appropriate orders. Since I have found that the actual act of taking delivery with the police help was done without securing the order from the court for police help, the delivery effected must be taken as invalid and I direct the property to be put back to the judgment debtor. The judgment debtor shall not also put up any construction if such a reentry into possession is afforded through court. The power to order a redelivery is available under inherent power to the court when the court finds that the manner by which the execution was levied was erroneous. No further petition is necessary and the Executing Court itself shall direct the bailiff to redeliver possession of the property by issuing appropriate orders. The ultimate decision regarding the entitlement or otherwise to remain in possession will abide by the execution petition which will stand revived and further process in execution shall be carried out in accordance with law subject however to any other order passed by higher courts and during the subsistence of the order the Supreme Court directing status quo order till the disposal of the Civil Revision No. 4348 of 2006. The impugned order rejecting objection to delivery is not interfered with but the order actually recording the delivery and consigning the file to the records by order dated 11.10.2013 is recalled. The judgment debtor is directed to be put back in possession. The civil revision is disposed of with the above directions. The respective parties shall bear the costs.