Sunil Kumar Dutta vs M/s. P.C. Chatterjee and Co.

Ashamukul Pal, J.—This application for revision u/s 115 of the CPC arises out of an order No. 36 dated 2.7.83 passed by learned Additional Munsif, Sealdah directing police help for possession of the premises for which decree had been obtained by the Decree-holder opposite parties (here represented by Mr. Mitra assisted by Mr. Saha). Learned Munsif in granting police help made the following observation :

Considering all aspects, I am of the opinion that in the interest of justice instant petition is allowed". The decree-holder has obtained the decree after contesting the suit by a competent court and he has complied with ail the legal provisions. He is entitled to enjoy the fruit of the decree.

Mr. Bagchi, Counsel for the judgment-debtor, challenged this order of the learned Munsif on two-fold grounds. First the case was not made out for such police help as provided under Rule 208 of the Civil Rules and orders. His second contention is that the learned Munsif did not consider all aspects of the matter before making such an order. The summary of his argument is that the learned Munsif failed to adjudicate rather did not adjudicate upon the matter in the light of the provisions as provided under Rule 208 of the Civil Rules and orders which enumerate the grounds and the occasions where court would make such an order. Mr. Mitra, Counsel for the decree-holder, contended that the application for revision has no legal foundation and is untenable both in law and in facts. His argument is that learned Munsif considering all the aspects and provisions as provided under Order 21 Rule 97 of the CPC as well as under Rule 208 of the Civil Rules and Orders has made the order for police help and that cannot be challenged here in this revisional jurisdiction because there is no exfacie error on the part of the learned Munsif. His other contention is that the application does not lie because the real legal remedy which would have been available under the law to the petitioner is an appeal under Order 21 Rule 103 of the CPC and not u/s 115 of the Code of Civil Procedure. His contention is that under Order 21 Rule 103 the order of the learned Munsif has the force of a decree and therefore he should have filed an appeal to the Lower Appellate Court and only by way of second appeal he could have moved this court if leave would have been allowed.

After hearing respective counsel of the parties, in, my opinion, the order of the learned Munsif cannot be sustained. The learned Munsif, it appears, has not considered; as it appears from his order, the material points in this regard. In order to grant police, help if the Presiding Judge upon consideration of all the facts and circumstances is of the clear opinion that there are reasonable grounds to suppose that execution will not be effected without serious danger to public peace, he may, after recording his reason for so doing, make a request to police for such aid as the latter may be able to give in the execution of the writ. It is clearly stated that police help is to be regarded as an extreme step and it should not be recommended unless the court is fully convinced of the existence of a grave emergency. In this case learned Munsif rather casually disposed of the application by saying that after considering all aspects he was of the opinion that for interest of justice the petition for police help would be allowed because the decree-holder will be entitled to enjoy the fruit he has got by getting a decree from a law court," but he has not stated that on consideration of all the facts and circumstances he was of the opinion that there was a danger of public peace. He has not stated in his order that he was convinced that unless police help was given there would have existed a condition of a grave emergency. Therefore., on the facts of the case such an order of police help is untenable in any event it does not appear that the learned Munsif considered those essential elements. In this case I may also refer to a judgment reported in Gaya Nath Ghose Vs. Amulya Chandra Sarkar and Another, His Lordship Mr. Justice Bachawat has pointedly observed that application for police help is a different type of application from an application under Order 21 Rule 97 of the Code of Civil Procedure. The court has framed special Rules for dealing with execution of a decree with police help and these rules are to be strictly complied with. Moreover, I find the Nazir''s report stating the nature of resistance faced to execute the decree, does not tally with the exaggerated case made out in the petition (Annexure ''A'') filed by the decree-holder under Order 21 Rule 97. Regarding second point of Mr. Mitra that appeal would not lie I may simply point out that Order 21 Rule 103 of the CPC cannot be attracted in this case in view of the fact that there has been no adjudication by the learned Munsif under Order 21 Rule 98 or Rule 100 in this case. The order of the learned Munsif does not show that such an adjudication was made. Unless such an adjudication was there the question of maintainability of the revisional application as contended by Mr. Mitra, does not arise. Considering these features of the case, I cannot sustain the orders of the learned Munsif and the order for police help has to be set aside.

Hence it is ordered : The revisional application is allowed and the Rule issued is made absolute. I make it clear that decree- holder will be at liberty to take step for execution of the decree in any lawful and legal manner as he would be advised to take in accordance with the provisions of law. let the records be sent down immediately.