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Execution- Court Order Required Before Providing Police Assistance To Deliver Possession To Decree Holder: SC [Read Judgment]

Ashok Kini
21 Oct 2019 12:54 PM GMT
Execution- Court Order Required Before Providing Police Assistance To Deliver Possession To Decree Holder: SC [Read Judgment]

"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."

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The Supreme Court observed that in execution proceedings, the concerned court's order has to be obtained before providing police assistance to deliver possession to the decree holder.

In this case, the High court held that the delivery of the suit property to Om Prakash in the execution proceedings by use of police force was vitiated in law as no orders had been obtained from the Court for such police assistance. The High Court further ordered that the Judgment debtor Amar Singh be put back in possession through the bailiff.

In appeal filed by Om Prakash, the issue considered by the bench 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?

The bench comprising Justice Navin Sinha and Justice BR Gavai noted that this was 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. But, it said that the proper procedure should have been followed in the case. It observed:

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.

But the bench said that, at this belated point of time, it is not inclined to order further enquiry into that aspect of the matter. Though the court said that the anxiety expressed by the High Court in this regard cannot be said to be unfounded or without substance, 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, the bench declined to interfere with the order recording delivery of possession. While allowing the appeal, it clarified:

"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." 

Click here to Read/Download Judgment


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