Execution of decree-Court can give possession of house which is locked by breaking lock of said house

 It is obvious that if the house is locked how the Court can put the purchaser in possession. When the law enjoins a certain duty upon a Court it gives the Court power to do everything which is necessary for performing that duty. Under the law the Court was bound to put the auction-purchaser in possession of the house, if necessary by removing the judgment-debtor or any other person who might have refused to vacate the same and for doing so it was necessary for the Court officer to go into the house. If the door of the house being locked the Court was obstructed from exercising the power vested in it by law it was the duty of the Court to remove that obstruction and carry out the mandatory provision of the law.1
The learned Munsif will depute, with as much expedition as is possible, a suitable and reliable officer to proceed to the house and give possession to it, within the boundaries as mentioned in the sale certificate (after carefully ascertaining it) to the auction-purchaser, and if in order to have access to the house in question it is necessary to break open any lock, that officer will do so. The properties found inside the house will be made over to the judgment-debtor if he is present, or to any person who is present on his behalf having been duly authorised by him to receive them. If neither the judgment-debtor nor anybody else on his behalf is present on the spot to receive the properties, a list of them will be made and they will be kept in such safe custody as the learned Munsif may direct and will be made over to the judgment-debtor on a property application made by him. The delivery of possession will be subject to any objection made by a third party under Order XXI, Rule 100

Patna High Court

Musammat Berunika Kuer vs Francis Thakur on 21 November, 1933

Equivalent citations: 148 Ind Cas 905

1. This application is directed against an order of the Munsif of Bettiah who declined to put the petitioner in possession of a house (purchased by her at a Court sale) by breaking a lock at the outer door of the house. The facts are simple. The petitioner as decree-holder purchased a house belonging to the judgment-debtor. When she asked the Court to put her in possession of it a writ of delivery of possession was issued, but it was found that the house was locked. The learned Munsif thought that the law did not empower him to break open the lock in order to put the auction-purchaser in possession and he called upon her to show him any law under which he could do so. The auction-purchaser, in my opinion, had simply to draw the attention of the Court to Order XXI, Rule 95 of the Code of Civil Procedure and to its plain meaning. Her lawyer, however, cited some old cases decided by the Calcutta High Court, but the learned Munsif thought that they did not apply to delivery of possession to auction-purchaser but to cases in which the decree itself is for delivery of possession as if there is any difference between the two as to the power of Court in the matter of delivery of possession. It is much to be regretted that the learned Munsif instead Of doing everything in his power to put the auction purchaser in possession of the house and to exercise his lawful powers in defeating the obstructive tactics of the judgment-debtor has passed an order which if upheld will bring the administration of justice into ridicule. It will be the easiest thing for judgment-debtor whose house has been sold to lock the house and thereby stop the Court from putting the auction-purchaser in occupation of the house. When a Court has sold a property of the judgment-debtor either to a stranger or to the decree-holder, it is morally and legally bound to do all that lies in its power under the provisions of the law to put the auction-purchaser in possession of the same. I fail to understand what further power beyond what he had under Order XXI, Rule 95, the learned Munsif wanted, in order to enable him to direct the breaking open of the lock. Order XXI, Rule 95 of the Civil Procedure Code runs thus:

Where the immovable property sold is in the occupancy of the judgment-debtor or of some persons on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf, in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

2. It is obvious that if the house is locked how the Court can put the purchaser in possession. When the law enjoins a certain duty upon a Court it gives the Court power to do everything which is necessary for performing that duty. Under the law the Court was bound to put the auction-purchaser in possession of the house, if necessary by removing the judgment-debtor or any other person who might have refused to vacate the same and for doing so it was necessary for the Court officer to go into the house. If the door of the house being locked the Court was obstructed from exercising the power vested in it by law it was the duty of the Court to remove that obstruction and carry out the mandatory provision of the law. The leaned Munsif, while refusing to order the breaking of the lock directed the Commissioner deputed to deliver possession only under Order XXT, Rule 95. I am unable to understand this order. How could the Commissioner give possession under Order XXI, Rule 95 by putting the auction-purchaser into possession of the house without going into the house when the learned Munsif by his order stopped him from entering the house aid decided that the lock could not be broken open? I am also unable to understand what other mode of delivery of possession was permitted in this case that the learned Munsif directed the Commissioner to give possession only under Order XXI, Rule 93. I have not the least doubt in my mind that it was the duty of the learned Munsif to direct the breaking of the Jock and putting the auction-purchaser into possession of the house. So that the auction-purchaser may not have to come to this Court again I wish to point out to the learned Munsif the provisions of Order XXI, Rule 98, so that if he finds that the judgment-debtor or any person on his behalf obstructs the due execution of the process of law issued by him he has the power of summarily putting the judgment-debtor or any person acting at his instigation into civil prison for a period of 30 days.

3. Before I pass an order in this case I wish to refer to one matter though it is not directly before me. It appears from the order sheet of the learned Munsif, dated March 15, 1933, that some person whose name is not clear from the order sheet objected to the delivery of possession on the ground that the property in question was a part of his zanana house and that the writ showed that it was to be served on a portion of his own land. The learned Munsif here remarked that the objection was frivolous as the objector did not claim the property and that he would simply deliver a formal dakhaldehani without which the applicant (meaning the auction-purchaser) could not sue for partition. I cannot understand the order. If by the writ of delivery of possession a third person is threatened with dispossession or dispossessed, he has his remedy. If he obstructs the delivery of possession the Court on application of the auction-purchaser can investigate it under Order XXI, Rule 97 and if he is dispossessed he can have the matter investigated under Rule 100. The order leads me to think that the learned Munsif is not quite clear in his mind as to what is a formal dakhaldehani and what is an actual dakhaldehani. He mentions the dakhaldehani as formal and then later calls it only under Order XXI, Rule 95. Under the law there are two modes of delivery of possession of a property, both when there is a decree for possession and when the auction-purchaser is to be given possession. These two modes do not depend upon the discretion of the Court, but depend upon the nature of the property of which possession is to be given. If the property is in occupation of the judgment-debtor or of same person on his behalf etc., the possession is to be given under one moral namely, by removing the judgment-debtor and putting the auction-purchaser or decree-holder in possession of it Vide Order XXI, Rules 35 and 95. On the other hand, if the delivery of possession is of a property which is not in occupation of the judgment-debtor but it is in occupation of a tenant or o her person entitled to occupy the same, the delivery of possession is to be given by proclaiming the possession of the decree-holder or auction-purchaser: (Vide Order XXI, Rules 36 or 96). In this case as it appears from the record there is no case; that the property of which the auction-purchaser seeks possession is not in the occupation of the judgment-debtor himself, therefore the delivery of possession must be under Order XXI, Rule 95 and it will not be a formal delivery of possession as the learned Munsif seems to speak of it but it will be a delivery of possession by removing the judgment-debtor or any person not entitled to continue in possession or who is holding it on his behalf, and putting the auction-purchaser in possession of it. Any person who objects to the delivery of possession and claims that he has a right to continue in possession in spite of the sale and that his right, if any, has not been affected by the sale, has, if dispossessed, his remedy. Mr. Mitter who appeared on behalf of the opposite, party judgment-debtor had obivously no cause to show why this dakhaldehani should not issue. He however stated that the house in question could not be approached without trespassing into the lands belonging to a third person. That is a matter which does not concern the judgment-debtor. There is, however, some indication of it in the order sheet and in order to avoid complications I direct the learned Munsif to issue specific instructions to the officer whom he deputes for delivery of possession under the orders which I propose to pass in this case that if the house which has been sold cannot be approached without passing through the lands of a third person not bound by the sale and this third person obstructs the delivery of possession, the matter should be brought to the notice of the Court and the Court, if necessary, on the application of the auction-purchaser by deputation of a Commissioner and getting a proper map prepared, should decide whether the objection in this respect is correct. If the objection is of such a nature that it can be decided under Order XXI, Rule 97 or Rule 100, it will be so decided. If the objection cannot be so decided and there is no independent access to the house in question the delivery of possession will be stopped, leaving the auction-purchaser to take such further steps in a proper suit as she is advised. Subject to this the order which I pass this. The learned Munsif will depute, with as much expedition as is possible, a suitable and reliable officer to proceed to the house and give possession to it, within the boundaries as mentioned in the sale certificate (after carefully ascertaining it) to the auction-purchaser, and if in order to have access to the house in question it is necessary to break open any lock, that officer will do so. The properties found inside the house will be made over to the judgment-debtor if he is present, or to any person who is present on his behalf having been duly authorised by him to receive them. If neither the judgment-debtor nor anybody else on his behalf is present on the spot to receive the properties, a list of them will be made and they will be kept in such safe custody as the learned Munsif may direct and will be made over to the judgment-debtor on a property application made by him. The delivery of possession will be subject to any objection made by a third party under Order XXI, Rule 100. As the judgment-debtor did not resist this application I pass no order for costs.

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