Juhra vs Liyaqat Ali and Others

Iqbal Singh, J.—By the order dated 12.11.1998, Civil Judge (Senior Division), Karnal, provided police help to the decree-holder/respondents for execution of warrants of possession against the judgment- debtor/petitioner. Aggrieved against the said order, the judgment- debtor/petitioner has preferred this revision petition u/s 115 of the CPC (hereinafter referred to as ''the Code'').

The learned counsel for the petitioner confined his argument to the effect that police could not be provided to the decree- holder/respondents for the execution of warrants of possession by the executing Court without resorting to the provisions of Order XXI Rules 97, 98, 100 and 101 of the Code. These Rules read as under:-

"97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction.

(2) Where an application is made under sub-rule(1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Resistance or obstruction by judgment-debtor.- Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, or on his behalf it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. Such detention shall be at the public expense and the person at whose instance the detention is ordered shall not be required to pay subsistence allowance.

Order to be passed upon application complaining of dispossession.- Upon the determination of the question referred to in Rule 101, the Court shall, in accordance with such determination, -

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

Questions to be determined.- All questions (including question relating to right, title or interest in the property) arising between the parties to proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

I have perused the impugned order dated 12.11.1998. No application under Order 21 Rule 97 of the Code was moved before the executing Court by the decree-holders complaining resistance or obstruction by the judgment-debtor in obtaining possession of the property. Therefore, there was no question of determination of such question by the executing Court under Rule 101 of Order XXI of the Code. No reasons, whatsoever, have been recorded by the executing Court for providing police help to the decree-holders in execution of the warrants of possession. The executing Court could not only provide police help after determining the question under Rule 101 if raised under Rule 97 by making an order under Rule 100, but could order detention of the judgment debtor in civil prison under Rule 98. In this view of the matter, the impugned order cannot be sustained in this behalf.

For the aforesaid reasons, I hold that the executing Court could not order for police assistance in execution of warrants of possession unless an application was made before it by the decree-holders under Rule 97 of Order XXI of the Code. Consequently, the impugned order, so far as it relates to providing police assistance, is set aside. The executing Court shall now proceed with the matter by following the proper procedure laid-down in the above said rules.

This revision petition stands disposed of accordingly.