Delivery of possession to Decree Holder with police assistance: What Supreme Court held
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Delivery of possession to Decree Holder with police assistance: What Supreme Court held

Murali Krishnan

The Supreme Court yesterday castigated executive authorities for using police assistance to deliver possession of a property to a decree-holder though there was no order by the executing court to provide such police assistance.

A Bench of Justices Navin Sinha and BR Gavai noted that 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 Court, however, held that in the peculiar facts and circumstances of the case it would not interfere with the order of the executing court recording delivery of possession. Hence, the order of the High Court to the extent it had directed redelivery of possession to the judgment debtor and revival of execution proceedings for a fresh delivery of possession to the decree-holder was set aside.

Facts

The judgment debtor Amar Singh claimed to be a purchaser of the suit property by a sale deed dated February 13, 1973. The property was acquired by the State under the Land Acquisition Act, 1894. Challenge by Amar Singh to the same was dismissed.

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, Om Prakash was the successful bidder in a court auction held on March 27, 1990. The auction sale was confirmed in 1997, sale certificate was issued in his favour and the sale deed registered on April 30, 1998.

The decree-holder then applied for delivery of possession in an execution proceeding. Meanwhile, the Judgment debtor sought an injunction against dispossession. After various rounds of litigation warrants of possession were issued on August 27, 2013.

The Tehsildar wrote to District Magistrate seeking police assistance for execution which was allowed.

The High Court held that delivery of the suit property to the decree-holder in the execution proceedings by use of police force was vitiated in law as no orders had been obtained from the executing court for such police assistance. The High Court, therefore, directed that Judgment debtor Amar Singh be put back in possession through the bailiff and execution proceedings be revived for fresh delivery to Om Prakash.

Aggrieved by the order of High Court, the decree-holder approached the Supreme Court in appeal.

The controversy for determination in the present appeal was 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?

Arguments

Gagan Gupta, counsel for the decree-holder submitted that the High Court 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 the 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 Magistrate and in pursuance of which the Commissioner of Police had directed the deployment. The Deputy Commissioner had instructed the Tehsildar to send a compliance report to the court directly. In consequence, possession was delivered on October 11, 2013. The executing court accepted the report regarding the delivery of possession and closed the execution proceedings.

Senior Counsel Rakesh Kumar Khanna, appearing for the judgment debtor, submitted that the anxiety expressed by the High Court 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. He argued that 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. He submitted that judicial pronouncements have repeatedly held that 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.

Judgment

The Court noted the facts of the case. The executing court had issued warrants for possession multiple times but the same could not be executed. Eventually, fresh warrants were issued on August 27, 2013. Meanwhile, the Tehsildar had written to the District Magistrate on May 9, 2013, requesting police help as he apprehended trouble at the time of delivery of possession.

The Court stated that there was no material to conclude that it was done at the behest of the decree-holder. The delivery warrants issued on August 27, 2013, was made returnable on October 5, 2013.  The authorities were nonetheless proceeding on the basis of the earlier delivery warrants.

The request for police help by the Tehsildar was then routed through the Sub­-Divisional Magistrate, the District Magistrate, the Deputy Commissioner and the Commissioner of Police.

Possession was delivered in the presence of the police on October 11, 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 recording delivery of possession were returned back to the court leading to the closing of execution proceedings on October 11, 2013.

The Court also noted that 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 apprehension expressed by the authorities at the time of delivery of possession was malafide or wholly unwarranted. The present case was not one where the judgment debtor had been forcibly ousted from the suit lands by use of brute police power without any orders in court proceedings.

However, the Court also noted that 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.

In this case, no report was submitted by the bailiff asking for police assistance in execution for reasons specified.  Likewise, there was no report under Order 21 Rule 35(3) CPC requesting police assistance for effectuating delivery of possession. There was no material to show whether the application before the Tehsildar was made by the bailiff or the decree-holder.

Hence, the Court held 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.  Thus the anxiety expressed by the High Court was fully justified, the Court said.

However, considering the facts and situation of the case, the Supreme Court stated that it was not inclined to interfere with the matter at the belated point of time. It, therefore, upheld the order of executing court recording the delivery of possession.

“At this belated point of time, we are not inclined or persuaded to order a 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.”

Consequently, it set aside that part of the order of the High Court by which possession has been directed to be redelivered to the judgment debtor, and the execution proceedings to be revived for a fresh delivery of possession to the decree-holder.

The Court, however, made it clear that it was passing the order in the peculiar facts of the present case and the order does not imply that it has pardoned or overlooked the action of the executive authorities.

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.”

[Read Judgment]

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