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Judgment
Bibek Chaudhuri, J
The instant second miscellaneous appeal is directed against an order dated 14th February, 2006 passed by the learned lower appellate court on an application under Order 21 Rule 97 of the Code of Civil Procedure (deemed decree) in a proceeding for execution of a compromise decree which was registered as Miscellaneous Appeal No.40 of 2005.
At the outset, it is made clear that the appeal was previously heard on 28th March, 2019. Then the record was misplaced and was not placed before me in spite of through search. Subsequently, on 29th November, 2019, the record was found from the department. Today, the matter was listed and heard and taken up for delivery of judgment.
By passing the order impugned in Miscellaneous Appeal No.40 of 2005, the learned Judge in First Appellate Court affirmed the order dated 26th August, 2005, passed by the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta in Miscellaneous Case No.69 of 2000. It is pertinent to mention that the said misc case arose out of an application under Order 21 Rule 97 of the Code of Civil Procedure filed by the assignee of the decree holder praying for police help to execute a compromise decree passed in Ejectment Suit No.600 of 1981.
Factual aspect of the matter is described below in a nutshell:-
The father of the appellant/petitioner, namely, Anil Kumar Basak, since deceased was a monthly premises tenant under one Sambhunath Ghosh. The said Sambhunath Ghosh and others instituted Ejectment Suit No.600 of 1981 before the learned Judge, 10th Bench, City Civil Court at Calcutta praying for a decree of eviction against the said Anil Kumar Basak, since deceased. The said suit was decreed on compromise between the parties on 11th September, 1984. From the said compromise decree, it appears that the defendant/tenant was satisfied that the plaintiff reasonably required suit room for the purpose of construction of a new building and the defendant/tenant had no objection for getting sanctioned plan for construction of a new building over the suit premises by the plaintiff. It was also decided that the defendant would be provided with a temporary accommodation of similar size in the said newly constructed building in the back portion of the premises. When the front portion of the building would be completed, the plaintiff would provide the defendant with a room in the front portion. The defendant shall go on paying to the plaintiff mesne profits at the rate of Rs.60/- per month and if the defendant fails to pay monthly mesne profits for two consecutive months and/or fails to vacate the suit room in terms of Clause 6, the plaintiff will be at liberty to recover the possession of the suit room by execution of the decree.
It is contented by the appellant/petitioner that the decree became executable on and from 16th October, 1984 therefore under the Laws of Limitation, any case for execution for decree dated 18th September, 1984 had to be filed by October, 1996 by the decree holder. But the respondent claiming to be the purchaser of the decreetal property and assignee of the decree filed execution case in the year 1999 against the original tenant Anil Kumar Basak. However, the said Anil Kumar Basak died intestate on 26th October, 1989. The heirs of the said Anil Kumar Basak thereafter went on paying mesne profits to Sambhunath Ghosh between September 1990 to June 1992 and between July 1992 to December 1996, the present respondent claiming to be the purchaser of the suit property and assignee of the decree received mesne profits from the heirs of Anil Kumar Basak including the petitioner. Between January 1997 to April 1997, the opposite No.1 refused to receive mesne profits from the heirs of Anil Kumar Basak and the postal money order by virtue of which the legal heirs of Anil Kumar Basak tendered mesne profits to the said Manas Guha were returned with postal remarks "not claim".
On 16th August, 1999, the opposite party No.1 filed Ejectment Execution Case No.58 of 1999 against Anil Kumar Basak, since deceased, though it was within his knowledge that the said Anil Kumar Basak died long ago, for breach of payment of mesne profits before the learned City Civil Court at Calcutta which was later transferred to the Presidency Small Causes Court at Calcutta and renumbered as Ejectment Execution Case No.31 of 1999. The opposite party No.1 also filed an application under Order 21 Rule 16 of the Code of Civil Procedure mentioning that the suit property was transferred to him on 11th June, 1992.
The respondent filed a writ of possession under Order 21 Rule 35 against Anil Kumar Basak on 27th January, 2000. Thereafter on 28th January, 2000, the seal bailiff of the Presidency Small Causes Court at Calcutta went to the suit premises but he was resisted by some third person, named, Dipak Dey. The Court bailiff also found the door of the decreetal property under lock and key. On the very same day, the seal bailiff submitted a report of resistance before the Executing Court. The learned Executing Court gave certain time to the respondent to take steps. The respondent applied for police help in execution under Order 21 Rule 97 of the Code of Civil Procedure on 9th March, 2000 against the original tenant Anil Kumar Basak, since deceased which was registered as Miscellaneous Case No.69 of 2000. The learned Executing Court allowed the said application which was registered as Miscellaneous Case No.69 of 2000 on due consideration of bailiff's report and evidence on record and passed an order for delivery of possession through police help by his order dated 26th August, 2005. Being aggrieved by and dissatisfied with the said order dated 26th August, 2005, the petitioner preferred an appeal being Misc Appeal No.40 of 2005 on the following grounds amongst others:-
Misc Case was barred by limitation as it was not filed within 30 days from the date of resistance to the bailiff.
The petitioner/respondent had no locus standi to file the misc case.
The alleged obstructer, namely, Dipak Dey was not made party to Misc Case No.69 of 2000.
By passing impugned order dated 14th February, 2006, the learned Judge, 4th Bench at City Civil Court allowed Misc Appeal No.40 of 2005 affirming the order passed by the learned Executing Court on 26th August, 2005 holding, inter alia,
As the decree was on compromise, Article 136 of the Limitation Act is not applicable.
Manas Guha, respondent herein being the assignee of the decree is competent to file a misc case under Order 21 Rule 97 of the Code of Civil Procedure and the names of the legal heirs of the deceased judgment debtor/tenant were already incorporated.
Dipak Dey was not a necessary party.
The said judgment passed in Misc Appeal No.40 of 2005 is under challenge in the instant appeal.
It is found from the order book that the appeal was admitted on 30th June, 2006 on the following substantial questions of law:-
a) Whether the executing court has any jurisdiction whatsoever to extend the period of limitation for making any application under Order 21 Rule 97 of the Code of Civil Procedure as fixed and determined by the Limitation Act, 1963.
b) Whether the learned Judge of the Court below committed any substantial error in law by allowing the Misc. Case under Order 21 Rule 97 of the Code of Civil Procedure without deciding whether the said application was filed within the period of 30 days from the date of alleged resistance as per Article 129 of the Limitation Act, 1963.
c) Whether a conditional compromise decree passed on September 11, 1984 is executable by filing tabular statement/execution application on August 16, 1999 i.e. almost after 15 years from the date of the decree.
I have heard the learned Advocates for the appellant and respondent at length.
According to the compromise decree dated 11th September, 1984, it was stipulated that the decree will not be executed except on noncompliance of any of the grounds mentioned in the decree would occur. On default of payment of mesne profits for consecutive two months, the decree becomes executable. It is also stipulated in the compromise decree that the respondent/decree holder would arrange for accommodation of the defendant/judgment debtor in a separate room and thereafter the appellant/judgment debtor will vacate the suit premises. As the suit was decreed on compromise on certain conditions, therefore the provision of Article 136 of the Limitation Act in the matter of execution of the decree within 12 years is not applicable. In the instant case the assignee of the decree holder filed execution case on violation of the terms of the compromise decree regarding payment of mesne profits to him. Limitation as regards executability of the decree would be counted from the date only when the terms of the compromise decree or any one of them would be violated by the judgment debtor.
It would also not be out of place to mention that this Court is concerned as to whether the order passed in Miscellaneous Appeal No.40 of 2005 is correct under the Law or not. The said miscellaneous appeal arose at the instance of one of the sons of the original judgment debtor, since deceased, namely Bidhan Basak. Prior to making such application, execution case was filed, bailiff went to the suit property to execute writ of possession under Order 21 Rule 35 of the Code of Civil Procedure. He was obstructed and then only the decree holder instituted Miscellaneous Case No.69 of 2000 praying for police help. The scope of this Court in the instant appeal is only limited to consider as to whether the decree holder and the seal bailiff were resisted by the judgment debtors or any other person in executing the decree.
It is vehemently argued by the learned Advocate for the appellant that the compromise decree dated 11th September, 1984 cannot be executed in view of the fact that the execution case was filed by the assignee of the decree holder in the year 2000 and the execution case is barred by limitation under Article 136 of the Limitation Act.
According to the compromise decree dated 11th September, 1984, it is stipulated that the decree will not be executable except on default of any of the grounds mentioned in the decree. On default of payment of mesne profit consecutively for two months, the decree becomes executable. It is also stated that the respondent/decree holder would arrange for accommodation of the defendant/judgment debtor in a separate room and thereafter the appellant/judgment debtor will vacate the suit premises. As the suit was decreed on compromise on certain conditions, therefore, the provisions of Article 136 of the Limitation Act in the matter of execution of the decree within 12 years from the date of passing of the decree is not applicable from the date of passing decree. The said period of limitation will be counted from the date of default of any of the conditions stipulated in the compromise decree. Therefore, the first limb of argument made by the learned Counsel for the respondent cannot stand and substantial question of law formulated in ground No.3 is therefore accordingly decided against the judgment debtor.
The opposite party No.1 filed writ of possession on 27th January, 2000 and on 28th January, 2000, the seal bailiff went to the suit premises. As per report of the bailiff dated 28th January, 2000, resistance was offered by one Dipak Dey at the time of executing writ of possession. That on 9th March, 2000, the respondent filed an application under Order 21 Rule 97 of the Code of Civil Procedure for police help. The appellant contended that the said application under Order 21 Rule 97 of the Code of Civil Procedure is barred by limitation under Article 129 of the Limitation Act.
In Panka Lal Bag vs. Santosh Kumar Sikdar reported in AIR 1984 Cal 232 it was held that the limitation for possession after removing the resistance or obstruction for delivery of possession to immovable property decreed is 30 days after the date of resistance or obstruction, but an application for police help cannot come within this category. In an application for police help, the applicant's prayer is to give him the aid of the police for executing the decree for possession which is the ultimate object. Therefore the application for police help is different from an application under Order 21 Rule 97 of the Code of Civil Procedure. Order 21 Rule 97 of the Code of Civil Procedure is the provision for removal of the person bound by the decree who does not vacate. It takes into account a situation where resistance to possession is offered by the judgment debtor or any other person bound by the decree which will include the claim of a person who claims to be in possession in his own right and independently of the judgment debtor but whose claim ex facie is unsustainable. Where, however, resistance is offered or where obstruction proceeds from the claimant claiming to be in possession in his own right and whose claim cannot be rejected on the ground of want of good faith without investigation, the decree holder must proceed under Order 21 Rule 97. Thus enquiry of Order 21 Rule 97 of the Code of Civil Procedure arises only when decree holder is obstructed by a person claiming right to possess the decreetal property independent of the interest of the judgment debtor. An application for police help for execution of a decree, though captioned under Order 21 Rule 97 of the Code of Civil Procedure should be treated as an application under Rule 208 of the Civil Rules and Orders.
In Gaya Nath vs. Amulya Chandra reported in AIR 1957 Cal 252, this Court has attributed similar view that an application for police help is essentially different from an application under Order 21 Rule 97 of the Code of Civil Procedure.
Therefore, Article 129 of the Limitation Act for possession of immovable property, an application would have to be made within 30 days of resistance, is not applicable in the instant application under Order 21 Rule 97 of the Code of Civil Procedure. Such application cannot be equated with the application for police help. In order to execute a decree with police help, there need not always be any actual resistance and such a help can be prayed for and such procedure can be availed at any point of time.
The learned Advocate for the appellant raised objection that the opposite party No.1 filed the execution case against a dead person and the writ of possession was also issued against the said Anil Kumar Basak, since deceased. Substitution of legal representatives of Anil Kumar Basak was done at the time of issuance of writ of possession.
The next question, therefore arises as to whether there is time limit to incorporate the names of the legal heirs in execution.
In V.Uthirapathi vs. Ashrab Ali & Ors reported in AIR 1998 SC 1168, it was held by the Hon'ble Supreme Court as hereunder:-
"It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."
Therefore, there is no period of limitation fixed for bringing the legal heirs of a deceased judgment debtor on record, so far as execution proceedings are concerned.
For the reasons stated above, this Court does not find any infirmity or illegality in the order passed in Miscellaneous Appeal No.40 of 2005.
Substantial question of law stated in grounds No.(a) and (b) are accordingly decided against the appellants.
Accordingly, I do not find any merit in the instant appeal and the instant second miscellaneous appeal is dismissed on contest, however without cost.
The judgment and order passed in Miscellaenous Appeal No.40 of 2005 dated 26th August, 2005 is hereby affirmed.
In view of dismissal of this appeal, CAN 7983 of 2018 is also treated to be disposed of.
Lower court records be sent down to the court below forthwith.