Order 21 Rule 25 of the CPC & Order 21 Rule 35(3) CPC Whether delivery of possession to the decree holder in execution of decree with police assistance was vitiated in absence of any orders by the Court for providing such police assistance? – No

Order 21 Rule 25 of the CPC & Order 21 Rule 35(3) CPC

Whether delivery of possession to the decree holder in execution of decree with police assistance was vitiated in absence of any orders by the Court for providing such police assistance? – No

In an execution proceeding, resort to use of police force for effecting delivery of possession

without obtaining appropriate orders from the executing court in that regard is a practice fraught with danger. A decree holder cannot be permitted to resort to procedures contrary to the law to take forcible possession by sheer use of police force merely because he has a Decree in his favour. Such an act amounts to subverting the law and misusing the process of law and courts. A litigant cannot be permitted to abuse the process of law and must pay the price by redelivery of possession. Repeated judicial pronouncements have held that in this country, possession can be taken even by a lawful owner only in accordance with law and if dispossession is contrary to law, the person evicted has to be put back in possession till he is duly evicted in accordance with law.

Order 21 Rule 25 of the CPC provides for endorsement by the officer entrusted with the execution that if he is unable to execute the process, the court shall examine the reasons for the

alleged inability and pass appropriate orders. No report was submitted by the bailiff asking for police assistance in execution for reasons specified. Likewise, there is no report under Order 21 Rule 35(3) CPC requesting for police assistance for effectuating delivery of possession.

There is no material if the application before the Tehsildar was made by the bailiff or the decree holder.

Be that as it may, we are constrained to hold that the procedure adopted by the police with regard to the delivery of possession by resorting to a manner outside the procedure of the court, using the court orders as an umbrella was wholly unwarranted. The executive authorities were completely unjustified in their over enthusiasm without asking for proper court orders regarding police assistance despite the fact that they were fully aware that possession was to be delivered in pursuance of a court order.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NO(s).8175 OF 2019

(arising out of SLP(C) No.3343 of 2014)

OM PARKASH AND ANOTHER ……APPELLANT(S)

VERSUS

AMAR SINGH AND ANOTHER …RESPONDENT(S)

WITH

CIVIL APPEAL NO(s).8176 OF 2019

(arising out of SLP(C) No.20368 of 2015)

AMAR SINGH ……APPELLANT(S)

VERSUS

OM PARKASH AND OTHERS …RESPONDENT(S)

AND

CONTEMPT PETITION (C) No.468 OF 2014

IN CIVIL APPEAL NO.1637 OF 2011

AMAR SINGH ….PETITIONER(S)

VERSUS

OM PARKASH AND OTHERS …RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

  1. The appellant­Om Parkash is the decree holder aggrieved by

the order of the High court holding that the delivery of the suit

property to him in the execution proceedings by use of police

force, was vitiated in law as no orders had been obtained from

1

the Court for such police assistance. Judgment debtor Amar

Singh has been directed to be put back in possession through the

bailiff. The execution proceedings closed on 11.10.2013 after

delivery of possession, has been revived. The entitlement to

possession has been left to be decided afresh in the revived

execution proceedings. The parties shall hereinafter be referred

to as decree holder and judgment debtor respectively for

convenience.

  1. The controversy for our determination in the present appeal

as addressed by learned counsel for the parties is extremely

limited. Whether delivery of possession to the decree holder with

police assistance was vitiated in absence of any orders by the

Court for providing such police assistance?

  1. Learned counsel for the decree holder Shri Gagan Gupta

submitted that the High Court has erred in holding that the

decree holder had resorted to unlawful and illegal methods for

execution of the decree for possession. The decree holder had

never made any request for deployment of police force for

execution. The Tehsildar himself being apprehensive of law and

order problems during delivery of possession to the decree holder,

had suo moto sought police assistance from the District

2

Magistrate and in pursuance of which the Commissioner of Police

had directed the deployment. The Deputy Commissioner had

instructed the Tehsildar to send compliance report to the court

directly. In consequence, possession was delivered on

11.10.2013. The executing court accepted the report regarding

delivery of possession and closed the execution proceedings. The

decree holder had purchased the suit lands in a court auction

sale dated 27.03.1990. Sale certificate was issued in his favour

on 27.04.1998 and registration completed on 30.04.1998. After a

protracted battle at the instance of the judgment debtor Amar

Singh, delivery of possession had been effected. The decree

holder has remained in possession by virtue of the order of status

quo passed by this court on 05.02.2014.

  1. Shri Rakesh Kumar Khanna, learned senior counsel

appearing for judgment debtor, submitted that the anxiety

expressed by the High Court in the impugned order is fully

justified and calls for no interference. In an execution proceeding,

resort to use of police force for effecting delivery of possession

without obtaining appropriate orders from the executing court in

that regard is a practice fraught with danger. A decree holder

3

cannot be permitted to resort to procedures contrary to the law to

take forcible possession by sheer use of police force merely

because he has a Decree in his favour. Such an act amounts to

subverting the law and misusing the process of law and courts. A

litigant cannot be permitted to abuse the process of law and must

pay the price by redelivery of possession. Repeated judicial

pronouncements have held that in this country, possession can

be taken even by a lawful owner only in accordance with law and

if dispossession is contrary to law, the person evicted has to be

put back in possession till he is duly evicted in accordance with

law.

  1. We have been carefully taken through the materials on

record and have also heard the counsel for the parties at length.

Though the nature of the controversy before us is extremely

limited, a brief recapitulation of facts will be necessary to put

matters in its proper perspective for better appreciation.

  1. The judgment debtor claimed to be a purchaser of the suit

property by a sale deed dated 13.02.1973. His writ petition

challenging the acquisition proceedings under Section 4 of the

4

Land Acquisition Act, 1894 dated 10.12.1973, after publication of

the award, was dismissed on 10.04.1989. The acquired lands

became the subject of recovery proceedings with regard to a claim

for compensation by another whose lands were also acquired but

compensation was not paid. The decree holder was the

successful bidder in a court auction held on 27.03.1990. The

auction sale was confirmed on 17.03.1997, sale certificate was

issued in his favour and the sale deed registered on 30.04.1998.

The decree holder then applied for delivery of possession in an

execution proceeding dated 19.09.1998. At this stage, judgment

debtor filed Civil Suit No.236 of 1998 seeking permanent

injunction against dispossession from the suit lands. Objections

were also filed by judgment debtor under Order 21, Rules 97 &

99 of the Code of Civil Procedure (hereinafter called “the CPC”) in

the execution proceedings instituted by the decree holder. On

20.10.1999, the execution proceedings were dismissed as being

barred by time with liberty to file a substantive civil suit for

possession. The decree holder then filed a fresh suit for

possession on 11.01.2000. The judgment debtor had filed a

Miscellaneous Application in the execution proceedings to

restrain his dispossession from the suit lands. The decree holder

5

had preferred Civil Revision No. 4348 of 2006 against the same

before the High Court which culminated in a Civil Appeal No.

1637 of 2011 before this Court by judgment debtor. On

14.02.2011, the Civil Appeal was disposed of granting status quo

till disposal of the proceedings pending before the High Court. A

contempt petition has also been filed arising from the same. In

view of the fact that the proceedings before the High Court had

itself been disposed of, in our opinion nothing survives in the

contempt petition.

  1. The Civil Suit filed by the decree holder for possession and

the suit filed by the judgment debtor for injunction, were heard

together. The suit by the decree holder was decreed and the suit

by the judgment debtor was dismissed. The first appeal preferred

by the judgment debtor was dismissed on 10.04.1989.

Thereafter, he preferred a regular second appeal only in the year

2019 and which is stated to be pending before the High court.

  1. The decree holder then filed fresh execution proceedings on

26.05.2012. The objections filed by judgment debtor to the

execution proceedings were dismissed on 10.04.2013 and the

appeal preferred him has also been rejected on 12.04.2017.

6

  1. At this stage, it may only be noticed that after dismissal of

his writ petition on 10.04.1989 challenging the land acquisition

proceedings, judgment debtor had filed an application under

Order 7 Rule 11 CPC for rejection of the suit for possession filed

by the decree holder. The application was rejected. Civil Revision

No. 4522 of 2009 preferred by judgment debtor was also

dismissed by the High Court holding that the lands had already

vested in the State pursuant to acquisition and that judgment

debtor had no subsisting right, title or interest in the suit lands.

The order of status quo in Civil Appeal No.1637 of 2011 arose

from the execution proceedings levied on 27.03.1990 by another

claimant who had not been paid compensation for acquired lands

and for which reason the suit lands were attached as ownership

stood vested in the State by virtue of acquisition. Once the suit

property was auction sold in the said execution proceedings and

it came to an end, the order of status quo loses much of its

significance. In any event the appellant instituted fresh execution

proceedings on 26.05.2012. It will, thus, be seen that

notwithstanding the decree in his favour, the decree holder has

7

since long been prevented and stalled by the judgment debtor

from obtaining possession in execution proceedings.

  1. Warrant for possession was issued on 13.03.2013, which

could not be executed. Fresh warrants for possession were

issued on 10.05.2013 which also could not be executed.

Consequently, fresh warrants were again issued for 19.07.2013

which were followed by fresh warrants returnable on 27.08.2013.

In the meantime, the Tehsildar on 09.05.2013 wrote to the

District Magistrate requesting for police help as he apprehended

trouble at the time of delivery of possession. There is no material

to conclude that it was done at the behest of the decree holder.

The delivery warrants issued on 27.08.2013 was made returnable

on 05.10.2013. The authorities were nonetheless proceeding on

basis of the earlier delivery warrants. The request for police help

by the Tehsildar was then routed through the Sub­Divisional

Magistrate, the District Magistrate, the Deputy Commissioner

and the Commissioner of Police. Possession was delivered in

presence of the police on 11.10.2013. The delivery of possession

proceedings records that there had been some obstruction during

the process which was also video graphed but ultimately in view

of the police presence matters were pacified. The warrants

8

recording delivery of possession were returned back to the court

leading to the closing of execution proceedings on 11.10.2013.

  1. The judgment debtor was well aware that the lands had

already vested in the State pursuant to the land acquisition

proceedings. His challenge to the same had been unsuccessful.

His suit had as also the First Appeal had been dismissed. His

objections in the execution proceedings were also rejected. He

therefore had no authority or right to remain in possession of suit

lands and was required to vacate the premises. In the

circumstances, it cannot be said that the apprehensions

expressed by the authorities at the time of delivery of possession

was malafide or wholly unwarranted. The present is not a case

where the judgment debtor has been forcibly ousted from the suit

lands by use of brute police power without any orders in court

proceedings.

  1. Order 21 Rule 25 of the CPC provides for endorsement by

the officer entrusted with the execution that if he is unable to

execute the process, the court shall examine the reasons for the

alleged inability and pass appropriate orders. No report was

submitted by the bailiff asking for police assistance in execution

9

for reasons specified. Likewise, there is no report under Order 21

Rule 35(3) CPC requesting for police assistance for effectuating

delivery of possession. There is no material if the application

before the Tehsildar was made by the bailiff or the decree holder.

Be that as it may, we are constrained to hold that the procedure

adopted by the police with regard to the delivery of possession by

resorting to a manner outside the procedure of the court, using

the court orders as an umbrella was wholly unwarranted. The

executive authorities were completely unjustified in their over

enthusiasm without asking for proper court orders regarding

police assistance despite the fact that they were fully aware that

possession was to be delivered in pursuance of a court order. At

this belated point of time, we are not inclined or persuaded to

order further enquiry into that aspect of the matter. The anxiety

expressed by the High Court cannot be said to be unfounded or

without substance. We fully endorse the anguish of the High

Court, but in the peculiar facts and circumstances of the present

case, the apparent absence of the semblance of any right, title or

interest in the judgment debtor to be on the lands in question, in

exercise of our discretionary jurisdiction decline to interfere with

the order dated 11.10.2013 recording delivery of possession.

10

This order is being passed in the peculiar facts of the present

case. We may not be understood to have pardoned or overlooked

the executive authorities for the manner in which they have acted

and any misadventure in future without appropriate orders of a

court will be obviously at their own risks, costs and

consequences.

  1. We, therefore, set aside that part of the order of the High

Court by which possession has been directed to be redelivered to

judgment debtor, and the execution proceedings have been

revived for fresh delivery of possession to the decree holder. With

that modification of the impugned order, the appeals and

contempt petition stand disposed of.

.………………………. J.

(Navin Sinha)

………………………. J.

(B.R. Gavai)

New Delhi,

October 21, 2019

11