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SRM Infracon Pvt Ltd & Another v/s An Elegant Hospitality & Another

    EX.P. No. 3 of 2017
    Decided On, 19 January 2017
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE RAJIV SAHAI ENDLAW
    For the Petitioners: Dinesh Garg with Rachna Agrawal, Advocates. For the Respondents: None.


Judgment Text
Rajiv Sahai Endlaw, J.

1. Execution is sought of a decree dated 7th December, 2016 of ejectment from immoveable property.

2. The counsel for the decree holders on enquiry states that there is no stay of execution and that the site plan of the property, of which possession is to be recovered, accompanying this execution petition is the same as the site plan filed with the suit.

3. Issue warrants for recovery of possession of basement, ground floor, first floor (excepting one small office room), second floor and third floor (excepting one office/room) and all other portions in occupation of the defendants of property No. 2105, Ward No. XVI, Khasra Nos.425&426, Nai Wala Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi-110005 as per the site plan filed along with the execution petition, returnable on 21st February, 2017.

4. The warrants, if necessary, be executed by breaking open locks and doors.

5. The counsel for the decree holders presses for police aid in execution.

6. I have enquired from the counsel for the decree holders, whether an order directing police aid in execution of warrants of recovery of possession of an immoveable property can be made in the very first instance. As per practise, police aid in execution of warrants of possession is ordered only if the warrants earlier issued are returned unexecuted for the reason of recovery of possession having been resisted or obstructed by the judgment debtor or any other person.

7. The counsel for the decree holder has drawn attention to my order dated 12th February, 2013 in Execution Petition No.39/2013 titled Vijay Kumar v. Rajeev Kumar.

8. The said order is however not of execution of warrants for recovery of possession of immoveable property with police aid but of execution of warrants of possession by breaking open locks and doors. It is noted in the said order that "there does not appear to be any provision of law preventing issuance in the very first instance, of warrants of possession to be executed by breaking open locks and doors, though a practise to the said effect has evolved". What prevailed with me in Vijay Kumar, to in the very first instance order execution of warrants of possession by breaking open locks and doors was that the immoveable property for recovery of possession of which warrants were being issued was reported to be lying locked. It was thus felt that without an order for execution of the warrants by breaking open locks and doors, the exercise of issuance of warrants of possession would be futile.

9. In the present case also I have herein above ordered the warrants for recovery of possession to be executed by breaking open locks and doors because of the order dated 7th December, 2016 disposing of the suit and in view of the peculiar facts as mentioned therein.

10. The counsel for the decree holder has then handed over copies of (i) order dated 22nd April, 2016 in Execution Petition No.59/2016 titled Shashi Garg v. M/s. Shitiz Metals Ltd.; and, (ii) order dated 28th September, 2015 in Execution Petition No.420/2015 titled Gaurav Moolani v. Muinuddin, vide both of which, in the first instance only, the Station House Officer (SHO) concerned within whose jurisdiction the property was situated was directed to render necessary assistance to the Bailiff to execute the decree.

11. There is however no discussion in either of the said orders on, whether under the law, warrants for recovery of possession, in the very first instance, can be issued to be executed with the aid of the police.

12. I have studied the said aspect.

13. The mode of execution provided in Order 21, Rule 35 of the Code of Civil Procedure, 1908 (CPC), where a decree is for the delivery of any immovable property, is by delivery of possession thereof to the party to whom it has been adjudged, by removing any person bound by the decree who refuses to vacate the property. Order 21, Rule 97 of the CPC provides that where the holder of a decree for the possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, the decree holder may make an application to the Court complaining of such resistance or obstruction and requires the Court, when such an application has been made, to adjudicate upon the application in the manner provided thereafter.

14. Order 21, Rule 98 of the CPC provides that upon the determination of all questions arising between the parties to the execution the Court shall in accordance with such adjudication make an order directing the decree holder to be put in possession of the property or dismissing the application and pass such other order as may be deemed fit in the circumstances of the case. It further provides that where, upon such determination, 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, the Court shall direct the decree holder to be put in possession of the property and where the decree holder is still resisted or obstructed in obtaining possession, the Court may order the judgment debtor or such person to be detained in civil prison.

15. From a reading of the aforesaid provisions it appears that in the first instance, under Order 21, Rule 35 of the CPC only the warrants for possession are to be issued, to be executed, may be by breaking open locks and doors, and it is only if there is resistance or obstruction and an application is filed by the decree holder complaining of such resistance or obstruction and after adjudication whether the resistance is valid or not that the direction for police aid (which would fall within the meaning of 'other order as may be deemed fit in the circumstances of the case' within the meaning of Order 21, Rule 98 of the CPC aforesaid) can be made.

16. I find, Supreme Court in Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 694, to have held on a conjoint reading of Order 21 Rules 97, 98, 99 and 101 that (i) if a decree holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 of the CPC, then the decree holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist, the Court can pass appropriate orders; (ii) if on such adjudication it is found that the resistance or obstruction was occasioned without a just cause by the judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed and the decree holder would be put in possession; (iii) once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well, the remedy available to the decree holder against such an obstructionist is by applying under Order 21, Rule 97 ; (vi) the decree holder cannot bypass such obstruction and insist on re-issuance of warrant for possession with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with the removal of obstruction of purported strangers to the decree; (vii) once such an obstruction is on the record of the Executing Court, it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to have an application for restoration of possession; (viii) it is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed; and, (ix) Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated before actual delivery of possession to the decree holder.

17. The purport of the aforesaid judgment appears to be that a party in possession of the property and not bound by the decree should not be dispossessed under the decree without having a chance to, on warrants of possession being issued and after coming to know of the same and resisting delivery of possession, have his objections adjudicated from the Executing Court. If the Courts in the very first instance were to start issuing warrants of possession with direction for execution thereof with police aid, the same will result in, even persons in possession of the decreed property and not bound by the decree, being dispossessed therefrom without having a chance to have their objections adjudicated from the Executing Court.

18. To the same effect is the judgment of the Division Bench of this Court in Indira Transport v. Rattan Lal AIR 1998 Delhi 2 where, while appointing a Receiver to take possession of the property, the SHO concerned was directed to provide police assistance to the Receiver. It was held that before directing delivery of possession to the Receiver by police aid, a positive finding should have been recorded whether the persons obstructing delivery of possession were the persons bound by the decree and whether the decree holder has a right to immediate possession from them.

19. The counsel for the decree holder has also referred me to the Notification dated 15th March, 2010 of this Court issued in exercise of powers conferred by Section 7 of the Delhi High Court Act, 1966 read with Article 227 of the Constitution of India, inserting Chapter 22 in High Court Rules & Orders, Volume I for streamlining the procedure for speedy disposal of cases under Delhi Rent Control Act, 1958 and inter alia empowering the Rent Controller/Additional Rent Controller to order for police aid at the first instance in the execution proceedings so as to ensure quicker delivery of possession to the decree holder by giving appropriate directions to the concerned SHO.

20. The counsel for the decree holder though states that the decree under execution herein also is a decree for ejectment of a tenant after determination of tenancy but fairly states that the proceedings were not under the Delhi Rent Control Act. He h

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owever states that the parity should be observed. 21. The Rent Controller/Additional Rent Controller in adjudication of the proceedings before it is not strictly bound by the provisions of CPC though is required to follow the principles thereof (see Section 37 of the Delhi Rent Control Act read with Rule 23 of the Delhi Rent Control Rules, 1959). However this Court exercising original jurisdiction under Section 5 of the Delhi High Court Act is bound by the provisions of CPC and which provisions as aforesaid do not permit issuance of warrants for recovery of possession in the very first instance, with police aid. The fact that a need was felt to issue a Notification to empower the Rent Controller/Additional Rent Controller to do otherwise itself is indicative of the same, in the absence of any specific provision, being not permissible. 22. I am therefore unable to agree with the contention of the counsel for the decree holders that at this stage only, warrants issued for recovery of possession be ordered to be executed with police aid. 23. The request to the said effect is rejected. Ordered accordingly.
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