Bhagabati Prosad Banerjee, J.
1. This is an application for restoration of possession filed by the defendant/appellant before this Court. This second appeal was admitted by this court on 22nd March 1991 and immediately after the admission of the appeal, the application was presented for appropriate order.
2. The learned Advocates appearing on behalf of the respondent stated on instruction from the respondent No. 1 who was present in court that the respondents had taken possession of two rooms on the ground floor and one room and one bath room on the 1st floor of premises No. 38, S. N. Banerjee Road, Barrackpore and that the respondent No. 1 was occupying the said premises after executing the decree. Mr. Sakti Nath Mukherjee, learned Counsel appearing on behalf of the appellant submitted that the appellants have been forcibly dispossessed by the bailiff with police help even though there was no order from the executing court for any police help. It was submitted that all goods and belongings of the appellant were thrown on the street on 22nd March 1991 whereupon this court passed an order directing the Superintendent of Police, 24 Parganas, North to submit a report and to appoint a receiver for preservation of the property under the peculiar facts and circumstances of the case. The learned Munsiff was directed to submit a report under that circumstances such dispossession took place with police force. On affidavits the matter was heard on the question of granting of appropriate order as prayed for by the appellant in view of that dispossession had been taken place. This appeal was presented before this court on 20th January 1991. A report was given on 21st March 1991 and ultimately the matter was heard on 22nd March 1991 after the appeal was presented and before the appeal was heard, the dispossession had taken place.
3. The plaintiff in this case filed a suit for declaration of title of the suit property and the suit was ultimately dismissed by the trial Court. The lower Appellate Court has reversed the judgment and was pleased to decree the suit in respect of Schedule 'B' property. Under the decree passed by the lower Appellate Court the plaintiff/ opposite party was entitled to decree for recovery of possession in respect of Schedule 'B' property from the defendant/appellant No. 1. The Appellate Court decreed the suit by the order and judgment dated 13th September 1990 passed in Title Appeals Nos. 89, 90 and 91 of 1989. From the certified copy of the decree passed by the Court below, it appears that "Schedule B All that piece and parcel of land measuring 16 'X30' about 3/4 kotta out of a schedule property with one pucca room on the western side with some vacant land, on the south of S. N. Banerjee Road, Barrackpore, P. S. Titagarh Dist. 24 Parganas bounded on the north by the S. N. Banerjee Road, on the south the tank of Pradip Chatterjee, on the West by Lalit Pharmacy (plaintiff's own land), on the east by the Kashmira Stores (plaintiffs own land)."
4. The records of the court below were called for. From the records of the Executing Court it appears that an application under Order 21, Rule II of the Code of Civil Procedure for execution of the said decree in respect of the said schedule B property to the plaint, was filed on 14th February 1991 and on 18th February 1991 the learned Munsif, 4th Court, Sealdah was pleased to pass the following order :
".... Verification made Dhr. files a petition supported by an affidavit praying for taking delivery of possession by breaking open the pad lock and bolt of the door is considered and the prayer is allowed. Requisites already put in. Issue of writ of possession u/O. 21, Rule 35, C.P.C. fixing 20-3-91 for returns and order."
5. It further appears that in the application for execution filed by the plaintiff/ respondent, 'B' schedule property was described as follows :
"Alt that piece and parcel of land measuring 16'30" about 3/4 ketta out of A schedule property with one pucca room on the western side with some vacant land on the south of S.N. Banerjee Road, Barrackpore, P. S. Titagarh, Dist. 24 parganas bounded on the north by S. N. Banerjee Road, on the south by the tank of Pradip Chatterjee, on the west by Lalit Pharmacy (plaintiff's own land) on the east by the Kashmira Stores (plaintiffs own land) -- the said room and land were formerly occupied by Ledu or Nidhi Mohan Karmakar, since evicted."
6. On the basis of the order passed by the learned Munsif dated 18-2-91 a writ of possession was issued for the purpose of taking delivery of 'B' Schedule property and to hand over the same to the respondents. In the said writ of possession issued by the Executing Court, Schedule 'B' property mentioned as "all that piece and parcel of land measuring about 16'30" about 3/4 kattah out of a A Schedule property with one pucca room on the western side with some vacant land on the south of S. N. Banerjee Road, Barrackpore, P. S. Titagarh Dist. 24-Par-ganas."
7. The said process for execution was issued under the seal and signature of the learned Munsif pursuant to the order dated 18-2-91. The Nazir attached to the office of the Munsif made an endorsement on the writ of possession to the extent that the same was made over to Tarak Nath Sengupta for service and return by 7th March 1991 which was extended to 13th March 1991. From the reports submitted by the police authorities before this Court pursuant to the order passed by this court on 22nd March 1991, it revealed that the Judgment-debtor Sri Rabindra Nath Ghosh, respondent herein, filed an application under Sections 107/144(2) of Cr.P.C. before the learned Executive Magistrate, Barrackriore which was registered as M.P. Case No. 604 of 1991 dated 5th March 1991. In the said application under Section 107 of Cr.P.C. the respondent/judgment-debtor stated that he had obtained a decree and had also instituted a case for execution in Title Execution Case No. 15/91 before the learned 4th Munsif, Sealdah for taking delivery of possession of the scheduled premises and that the Executing Court was pleased to pass an order directing the court bailiff to take delivery of the scheduled property 6th March 1991. It was further stated that "the said O.P. with the help of some anti socials are threatening the petitioner saying that they would obstruct into said execution work and even they might assault the petitioner and any person who would object into their illegal activities for which a serious apprehension of the breach of peace is prevailing over the said issue." It was further stated that the matter was duly reported to the local police station. In the said application under Section 107/ 144(2) of Cr.P.C. a prayer was made that "your Honour would be pleased to take steps against said O.Ps. U/S. 107/144(2) Cr.P.C. restraining the O.P. or her associates or any agent or agents from causing any obstruction in any manner at the time of taking delivery of the possession of the schedule room/ premises in course of the execution of the order passed by the Ld. 4th Munsif, Sealdah in connection with T.Ex.-15/91 directing O/C. Barrack-pore P.S. to render all sorts of help to the court bailiff for ends of justice."
8. In the said application filed before the Executive Magistrate Barrackpore, a schedule of property disclosed by the judgment-debtor, respondent herein, was "premises in 38 S. N. Banerjee Road, Barrackpore, P. S. Titagarh, Dist. North 24-Parganas. Now in illegal occupation of O.P." In the said application Mr. N. B. Pal Executive Magistrate passed the following ex parte order on 5th March 1991 :
"O.C. Titagarh P.S. is directed to render all sorts of police help to the bailiff at the time of handing over of possession of the suit property as mentioned, in the schedule. Directed to comply with the order of the Ld. 4th Munsif of Sealdah Court, Report and compliance on 8-3-91."
9. It appears that the order was served upon the Officer-in-charge of Titagarh Police Station and on 7th March 1991 Sri Nemai Chandra Dey, S.I. of Police, P. S. Titagarh submitted a report of the Additional Superintendent of Police, Barrackpore, Titagarh P.S. that he has enquired into the contents of the letter and the same revealed that the suit property was under the possession of the occupant since long. It also transpires that on receipt of the said letter of the Executive Magistrate, the Officer-in-charge of Titagarh Police Station submitted a report to the Executive Magistrate through Additional Superintendent of Police, Barrackpore for some clarifications in which it was stated that "In returning herewith the original petition, I beg to report that I have perused the order of the Judge's Court, Alipore. The Court ordered the O.P. to vacate the suit property within 90 days otherwise, bailiff would go to take over possession. But this yet to be ascertained whether the order was served upon the O.P. In case of Police help in connection with T.Ex., the concerned court sends requisition to Addl. S.P. Barrackpore and he provides police help after realising police cost. Hence, police help could not be provided in handing over possession of the suit property. Moreover, the P.P. could not produce any document in support of para No. 3 of the petition." Para 3 of the petition refers to the order passed by the Executing Court for delivery of the property by 6-3-91." On the basis of the said report submitted by the officer-in-charge of the said police station on 5th March 1991, . Executive Magistrate passed the following and the ex parte order on 6th March 1991 :
"Seen the report of O. C. Titagarh P.S. Heard the petitioner send copy of order to the Addl. S. P. Barrackpore for determining the cost of police picket for delivery of possession in connection with I.Ex. No. 15/91, passed by the Ld. 4th Munsif, Sealdah."
10. ft further appears on the basis of the assessments made by the police authorities, a sum of Rs. 1016/- was deposited in the treasury on 7th March 1991 and on 8th March 1991, the Additional Superintendent of Police, Barrackpore informed the Munsif, 4th Court Sealdah i.e. the Executing Court by memo No. 570/E dated 8-3-91 as follows :
"Date and time has been fixed on 12-3-91 on 11 hours to render police help in connection with above mentioned case. The process server may kindly be directed to report O.C. Titagarh P.S. earlier on the date fixed for taking delivery of the possession. The party has deposited police cost as per order dated 6-3-91 of N. B. Pal, Executive Magistrate, Barrackpore in connection with I.P. Case No. 604 of 1991. "If the execution is not held on the date fixed this office may kindly be intimated on 11-3-91 within office hours so that the arrangement made for this purpose may be treated as postponed otherwise the amount deposited by the party concerned will be treated as forfeited to the Government." Copy of the said memo was forwarded to the Officer-in-charge of Titagarh Police Station with the following endorsement O.C. Titagarh P. S. for information and necessary action. He will please depute a force comprising 2 (two) SIS, 1(one) ASI, 6(six) constables and 3 (three) LHGs for the said purpose on 12-3-91 at 11.00 hours and see that the breach of the peace can take place at the time of execution of Court's order also submit a compliance report to this office. The place of operation is 38, S. N. Banerjee Road, under Titagarh P. S. Dist. North 24-Parganas." These facts are all admitted facts.
11. It also appears that pursuant to the communication made by the Additional Superintendent of Police to the learned Munsif 4th Court. Sealdah by the memo dated 8th March 1991, the process server/bailiff attended Titagarh Police Station on the date and lime fixed and from the police station he went to the premises in question where with the police help the appellant had been dispossessed and all belonging including the almirah, beds, cots, table, chairs, suitcases, beddings had been thrown into the public street. Some photographs were annexed to the affidavit and from the photographs it appears that by the side of the goods and belongings which were thrown into the public street, one police officer was sitting leisurely. These photographs had not been denied and disputed by the respondents and it has not been stated that this was not a real picture of the situation. In the report submitted by the police before this court the process server had made a note on the back page of the order of the Additional Superintendent of Police, Barrackpore vide memo No. 571/1(3)/E dated 8-3-91 that in accordance with the identification of the property made by the decree-holder, after the execution was started, the officer from Titagarh Police Station came to the spot and taking over possession ceremony was concluded peacefully. In the report submitted by the police on 12-3-91 the said officer and the force returned to the police station after assisting providing police help to the process server Tara Nath Sengupta in making over possession to Sri Rabindra Nath Das.
12. Pursuant to the order dated 22-3-91 the learned Munsif in his report dated 26th March 1991 had stated before this Court that "as per decree passed by the Ld. Appellate Court, the decree-holder filed one Title Execution No. 15/91 for delivery of possession. The writ was issued accordingly on 18-2-91. The process server went to the locals for execution and he has delivered the possession of the suit property at the identification of the D. Hr. on 12-3-91. He has filed his report accordingly which does not also reveal that the decree/writ was executed with the help of police. On 25-3-91 the J. Dr. filed a petn. u/Ss. 144 and 151, C.P.C. for re-institution of the possession of the suit property and that petn. was supported by one Chiranjit Ghosh by swearing an affidavit the petn. was moved on 16-3-91 and after hearing, I have passed an order directing the O.C. Titagarh P.S. to submit a comprehensive report regarding the matter of police help which was not ordered by this court. On 20-3-91 the report came along with all the xerox copies of the order of Ld. Executive Magistrate on the petn. under S. 144(2)/107, Cr.P.C. allowing the police help." In the report submitted by the process server, the fact that the possession was taken over with the police help, was also suppressed by the bailiff. The learned Munsif appears to have suppressed the fact that the Addditional District Magistrate informed the learned Munsif by memo dated 8-3-91 about rendering of police help for the purpose of taking over possession and that the Additional Superintendent of Police requested the learned Munsif to direct the process server to report to the police station earlier on the date of execution for the purpose of taking police help. From the communication made by the Additional Superintendent of Police Bar-rackpore to the learned Munsif, it was clear that the fact that police help was rendered by the police Magistrate in Title Execution No. 15/91 was drawn to the notice of the learned Munsif, 4th Court, Sealdah before the possession was taken over and that pursuant to such direction issued by the Additional Superintendent of police, the process server went to the police station for obtaining police help.
13. These are the facts under which the possession was taken over by the process server with police help and made over to the decree-holder/respondent on the date, even though there was no order for police help passed by the learned Munsif in title execution case. In the instant case after the process was issued for execution of the decree, the decree-holder straightway moved a petition under Section 107/144(2) of the Code of Criminal Procedure for obtaining police help for the purpose of executing the decree for delivery of possession of the suit property. In the certified copy of the decree 'B' Schedule property was more or less 16'X30". The application filed by the decree-holder also mentioned that area. The process was issued by the learned executing court for that area. On scrutiny of the criminal plaint from the records forwarded by this court of course it appears that the said area was 16'30", which area is correct or not for us at this stage to decide, inasmuch as, before the Executing Court the Decree-holder mentioned in area in 'B' Schedule property as 16'30". In the writ of the process issued by the learned Munsif and on the basis of which the decree was sought to be executed, the area was mentioned as 16'X30" and as a matter of fact, the entire premises No. 38, S. N. Banerjee Road, it comprised of two rooms of the ground floor, one room and one bath-room on the 1st floor of the premises in question and that admittedly, the said two storied structure did not and cannot comprise of 16'X30" but beyond that. Admittedly, the police help was rendered for the purpose of recovery of entire premises No. 38, S. N. Banerjee Road, Barrackpore which is comprised of three rooms and bath room mentioned above.
14. On the basis of the above facts it was contended by Mr. Sakti Nath Mukherjee learned Advocate appearing on behalf of the appellant that the bailiff had taken over possession with police force, even though there was no order for police help of the Executing Court and took over possession of areas which were beyond the area mentioned in the process or the writ issued by the learned Munsif, wherein it was specified that the possession should be taken only in respect of 16'X30" comprised of only one room, but as a a matter of fact hereinbefore stated possession of two rooms on the ground floor and one room with one bath room on the 1st floor were taken over. Mr. Mukherjee submitted that this dispossession was not in accordance with law and on the contrary, it was a case of gross abuse of the process of law. It was the submission of Mr. Mukherjee that the Civil Procedure Code is a complete code in itself for the purpose of taking over possession of the properties and if necessary, with police help. In this connection, reference was made to the provisions of Order 21, Rule 24(3) of the Civil Procedure Code which provides "in every such process, a day shall be specified on or before which it shall be executed and a day-shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void if no day for its return is specified therein." Mr. Mukherjee submitted that in the order passed by the Executive Court on 18-2-91 as we well as in the process issued by the learned Munsif for taking over possession, no date was specified on or before which it should be executed, but only returnable date was fixed. Relying upon the provisions of Order 21, Rule 34(3) of the Code of Civil Procedure, Mr. Mukherjee submitted that unless a date is specified in the process on or before which it should be executed, the process should be treated to be void and illegal and on the basis of such void process, no possession could be taken over and even if the possession had forcibly been obtained on the basis of the void process, that taking over possession was no possession in the eye of law, inasmuch as, under the law, a person can only be dispossessed in accordance with law. Any dispossession made forcibly and under a void process, is a dispossession which law cannot recognise. In this connection, reference was made to the decision of this court in the case of Dipak Kumar Mushi v. Smt. Meera Chatterjee reported (1986) 2 Cal HCN 350, wherein it was held by the Division Bench of this Court that failure to specify the date on or before which the decree should be executed, the decree would become void.
15. It was next submitted by Mr. Mukherjee that in the instant case, the process was issued ex parte without giving an opportunity to the judgment-debtor and stated that at the initial stage, such a process could be ex parte. But if any question arises for taking possession with police help, in that event, the mandatory provision of Order 21, Rule 97 had to be adhered to, which provides "where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction, whereupon this court should proceed to adjudicate upon the application in accordance with the provisions contained therein.
16. Our attention was also drawn to the provisions of Rule 208 of the Civil Rules and Orders which was framed by this High Court in accordance with the power conferred upon the High Court under the provision of the Code of Civil Procedure Rule 208 of the Civil Rules and order framed by this Court provides-
"A decree-holder praying for police help in execution shall state in his application the full reasons thereof, supported, if required, by an affidavit. The Court may further examine the decree-holder or such other persons as it thinks fit touching the necessity of police help. If upon a consideration of all the facts and circumstances, the presiding Judge is of the clear opinion that there are reasonable grounds to suppose that execution will not be effected without serious danger to the public peace, he may, after recording his reason for so doing, make a request to the Superintendent of Police of the District for such police aid as the latter may be able to give in the execution of the writ. It is to be understood that police help is to be regarded as an extreme step and it should not be recommended unless the court is fully convinced of the existence of a grave emergency."
17. According to Mr. Mukherjee the alleged dispossession with police help by the process server was void on the ground, firstly, the process server with the police help obtained possession of areas in excess of areas mentioned in the process, secondly, the possession was taken with police help by practising a fraud upon the statute and thirdly, the execution was on the face of it void, inasmuch as, no date for execution is as mandatorily provided under Order 21 Rule 24(3) of the Code of Civil Procedure.
18. Mr. Mukherjee submitted that after admitting the second appeal, this court is competent to pass an order for recovery of possession if the Court feels that the dispossession had been made without the authority of law and by adoption of a procedure not contemplated or provided under the law and in support of this contention Mr. Mukherjee relied upon a Division Bench judgment of this court in the case of Indian Cables Co. Ltd. v. Sumitra Chakraborthy .
19. Mr. Mukul Prakash Banerjee followed up by Mr. Dipankar Ghosh, learned Advocates, appearing on behalf of the respondents submitted that this court had no jurisdiction to decide the question which had been raised by Mr. Mukherjee as these are matters exclusively within the jurisdiction of the executing court under S. 47 of the Civil Procedure Code. It was submitted that whether the execution was void, illegal and/or there had been excessive execution are questions arise between the execution, discharge or satisfaction of the decree can only be decided by the executing court and the High court had no jurisdiction to decide the questions which are exclusive within the jurisdiction of the Executing Court. H was submitted that in this case, the Executing Court is the only proper court which can decide these questions. It was submitted that even if the execution was void, the same has to be decided by the executing court. In this connection, reference was made to the decision of the Supreme Court in the case of Maria Ramanna v. Nalappa Raju wherein the
Supreme Court held that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by application under S. 47 and not in a separate suit", Reference was also made to the decision of the Supreme Court in the case of B. V. Patankar v. C. G. Sastri .
In this case, it was held that "Where the executing court ignores the provisions of the Rent Control order prohibiting eviction of tenants and passes an order of delivery of possession in execution of a decree, the order can be set aside and an order of redelivery to the tenant can be passed on an application under S. 47 read with S. 151 of Civil Procedure Code."
20. Reference was also made to the decision of Supreme Court in the case of Jai Narain Ram Luddia v. Kedar Nath Khetan where the Supreme Court held that "The executing court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under S. 47, Civil P.C. it can only be determined by the Court executing the decree". In this case, where the decree directed that "against payment or tender by the plaintiffs..... the said defendants..... do execute in favour of the plaintiffs proper deed or deeds of transfer" and in this case, "when a decree imposes obligations on both sides which are so conditioned that performance by one is conditioned on performance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree; a thing that an executing court cannot do."
21. For that aforesaid propositions, reference was also made to the decision of Supreme Court in the case of Ram Chand Spg. and Wvg. Mills v. Bijli Cotton Mills wherein it was held
that "Order for setting aside the auction sale as nullity on the ground that the deposit was not paid on the day the sale was held. The order is a final order and not an interlocutory order and as such falls within the definition of a decree under S. 2(2) read with S. 47 of C.P.C. Reference was also made to the decision in the case of Harnandrai v. Debidutt . Aygammal v.
Thangavelu Padyacti , Moti Lal v. Bai Mani
for the purpose of explaining the scope
of S. 47 of the Code of Civil Procedure. It was also submitted on the basis of a maxim "Falsa Demonstratio Non Nocet" which means, mere false description does not vitiate, if there be sufficient certainty as to the object. It was further submitted that this court had no jurisdiction to pass any order against the order passed in execution, inasmuch as no appeal lies against the order for execution and the factum of execution is made by the executing court. Mr. Ghosh next submitted that O. 21, R. 23(2) and (3) of the Code of Civil Procedure mentioned the word 'process' is not an order and submitted that the order for execution has to be passed by the Executing Court and not the process and as such no duty was cast under O.21, R. 24(3) of the Code of Civil Procedure on the executing court to specify the date on or before which it shall be executed and that when the statute had not cast a duty upon the executing court to specify the date, non-specifying the date cannot vitiate the process, inasmuch as, the process is a ministerial act and is done nazirkhana. It was pointed out that on the body of the process there was an endorsement made by the Nazir whereby it was indicated a date with these words 'for service and return by 7-3-91 extended to 13-3-91. It was further submitted that there was a presumption of regularity in the act of the court and when the process by the court, the presumption was there that was issued correctly and after maintaining the provision of law and that such presumption can lightly deal with by the court.
22. Admittedly, in the instant case, the certified copy of the decree mentioned the area for which the decree was passed by was 16" x 30" and that the decree-holder in the application for execution filed before the executing court mentioned that area and the executing court passed process for execution of that area. Even assuming that there was a mistake in the area, no step was taken to rectify the mistake and that under the law, the bailiff has to execute the decree in terms of the process issued by the court and that admittedly, the execution was made for an area beyond the area mentioned in the process issued by the executing court. The law is well settled that the executing court cannot go behind the decree and that there cannot be any execution, unless there is a decree. In the instant case, the decree which was sought to be executed, was not executed by the bailiff under the case. In the instant case, from the facts it is clear that after the executing court had issued process, the judgment-debtor had filed a petition for drawing up a proceeding under S. 107/144 of the Code of Criminal Procedure alleging that there would be resistance at the time when the decree would be executed by the bailiff and in the application before the Executive Magistrate the decree-holder did not mention the area in accordance with the area mentioned in the process and nor the area mentioned in the original plaint but giving a go-bye to the area which was the subject matter of the suit as 38, S. N. Banerjee Road. The petition was filed before the Executive Magistrate by Rabindra Nath Das against the judgment-debtor Smt. Usha Ghosh and her associates. There was a specific prayer before the Magistrate for an order upon the officer-in-charge of the said police station to render all sorts of police help to court bailiff in T. Ex. No. 15/91 for the ends of justice whereupon the learned Magistrate without issuing any show cause or giving any opportunity to the opposite party straightway directed the Officer-in-Charge of Titagarh Police Station to render all sorts of police help to the bailiff at the time of handing over possession of the suit property and also directed to comply with order for execution passed by the executing court. The Officer-in-Charge of the said police station pointed out that there was no such order from the executing court and any order was not shown by him. Surprisingly the Executive Magistrate ignoring the report of the Officer-in-charge sent the copy of the order to the Additional Superintendent of Police, Barrackpore to determine costs of police picket in connection with the execution case. It is also on record that the bailiff in his report before the executing court pointed out that the possession has been given to the judgment-debtor and the judgment-debtor's son had removed their goods peacefully. But it was submitted that the bailiff is guilty of giving a false report before the executing Court. The bailiff had suppressed the fact that he had gone there with police force. The fact that the police force was utilised for the purpose of dispossession was also within the knowledge of the learned Munsif, 4th Court, Sealdah. The manner in which it was done, clearly indicates that the whole thing was done at the instance and machination of the decree-holder, order under S. 144 has been held by the Supreme Court not a judicial order but it was an administrative order in the case of Gulam Abbas v. State of U. P. wherein the Supreme Court held that order
under S. 144 was administrative in nature and not judicial or quasi judicial. The manner in which the Executive Magistrate had acted, was in short reckless. The manner in which the police force was deployed at the cost of the decree-holder and the manner in which the learned Munsif ignored about the deployment of the police force and the manner in which the bailiff had deliberately submitted a false report, are clearly indicating the fact that it is the extra judicial power which has brought about the situation. The provision of the Code of Civil Procedure has been given a go-bye. This state of affair cannot be allowed to be continued and this court should not keep the eyes closed mere on the ground of technicalities. In such a case of police help by executing court, the court has to give an opportunity to the judgment-debtor before granting any police help, inasmuch as, it is an admitted position that taking of possession by police force was very unusual method. This court in the case of Gayanath Ghosh v. Amulya Chandra Sarkar wherein it was held that
"the executing court while passing order for police help under the Code proceed with great confirm, The persons sought to be dispossessed is vitally affected by the order for police help and is entitled to be heard on an application praying for such help. It was further held that an order for police help obtained from Executing Court improperly was liable to be set aside.
23. In this case the Executing Court issued a process for recovery of 16' x 30" mentioned in the Schedule B that admittedly on the basis of such a process possession was taken for the entire premises No. 38 S. N. Banerjee Road, Barrackpore which, was beyond the process. Whether there was. a mistake in the schedule of the process or not is not a matter to be decided by the bailiff or the police. If there was any defect or error it, was for the executing court to correct it and it appears from the record that no application has been filed by the decree-holder to correct the mistake, if any, so long as it is not corrected by the executing court, possession of the property not mentioned in the process cannot be taken over with police help which is an extra judicial method adopted for the purpose. Further the order that was passed by the executing court under O. 21, R.97, is a judicial order not an administrative or quasi judicial. In the instant case, the decree-holder. obtained a process for taking delivery of possession from the executing court, went to the Executive Magistrate and obtained an order for police help after depositing the huge sum of money and the bailiff went there with police force and with police help forcibly dispossessed the judgment-debtor and thrown to the public street. The photographs are showing that the goods are lying on the street and a police officer was sitting there. It has not been denied and disputed by the decree-holder, even though the photographs are annexed to the petition. If the practice which was adopted in this particular case is not stopped, in that event, the decree-holder who had money and influence, can do whatever they like. Unless this system is stopped by any judicial pronouncement, people's confidence, on the judicial system of this country, will be shakened forever and if this state of affair is allowed to be continued and if this court do not take steps by keeping the hand folded, the rule of law will be replaced by a system which would be subversive to the cause of justice. Money and man power will prevail upon the judicial system. If any person is dispossessed by gross abuse of the processes of the court with the help of police power, in that event, the same would be on the face on it void. No court of law can give a judicial stamp on such illegal process. It was submitted that these matters are within the executing court and this court cannot intervene. We are unable to accept this proposition. There was no valid process. The process was issued for the purpose of taking over possession of 16' x 30" but the judgment-debtor was dispossessed from the entire premises No. 38 S. N. Banerjee Road. It is not a case of executing a decree only in excess. If the bailiff by mistake Or otherwise, had taken possession of area in excess of the area, the same can be corrected by the executing court in exercise of power under S. 47 of the Civil Procedure Code. But here is a case, where something is done dehors the statute. When something is done in gross abuse of process of court and when the Additional Superintendent of Police drew the attention of the learned Munsif, the police force would be deployed pursuant to the order of the Executive Magistrate for the purpose of executing the decree and the bailiff was asked to attend the police station and accordingly, possession was taken. In the instant case the question is whether we can refuse, to grant any relief to the aggrieved party and ask the party to go before the executing court who is guilty of violating the provisions of the Code and who is apparently guilty, of suppressing the truth before the court. It is well within the knowledge of the Executing Court that the police force will be deployed, even though the decree has to be put into execution without police force. In our view, if the executing court had acted in a reckless manner and when it appears that the decree has been executed in a manner which has threatened the existence of the judicial system and which was in gross abuse of process of court, and there is no execution of the decree in accordance with law, we are unable to accept the same as the execution in the eye of law. In the matter of execution of a , decree, the decree-holder, the learned Magistrate, the bailiff and the police acted in collusion with each other with the full knowledge of the Executing Court. A possession can be taken by the court by properly executing a decree in accordance with law. When the Civil Procedure which is acomplete Code, in itself, it was a gross abuse of process of court in taking other possession in the matter it has been done in the case by passing the provisions of the case. Unless police help is not rendered by the executing court in accordance with the provision of 0.21, R. 97 read with R. 208 of the Civil Rules and Orders framed by the Court, police help cannot be rendered by any order passed by the Executive Magistrate. The Executive Magistrate had no authority and/or jurisdiction under the Civil Procedure Code to pass ex parte order for police help for the purpose of taking forcible possession. The procedural safeguard is provided under Civil Procedure Code and Civil Rules and Order which is the only method by which a person can be dispossessed in execution of a decree, and the possession of the property cannot be taken away without complying with the mandatory procedural requirements. If the same is done, then it will be a case of procedural ultra vires. It is not a case of innocent mistake, omission or commission, but it was a deliberate act engineered by the decree-holder who had acted in collusion with other authorities for the purpose of by-passing the provisions of the Code and to take possession with police help in a designed manner. This is not permissible. Accordingly, we hold that the manner in which the possession was taken was illegal and void. It was a gross abuse of the process of the court. In our view the Executive Magistrate had no jurisdiction to pass any order concerning the civil rights of the people.
24. The next question is whether it is voidable or void. Mr. Ghosh learned counsel appearing on behalf of the decree-holder submitted that if it was void, it is exclusive jurisdiction of the executing court under S. 47 of the Code of Civil Procedure. The judgment debtor can only get remedy in such circumstances by going to the executing court. We are unable to accept this submission. It was not a case of executing of a decree in accordance with the provision of Code of Civil Procedure by the Executing Court. It was not a case of execution by executing court in ordinary course. If anything is done wrongly, the same could have been decided by the executing court. Here, there was no occasion on the part of the executing court to grant any police help for execution of a decree. The learned Munsif had issued a process. The decree-holder obtained police help in a surruptitious manner and thereafter, with police help, forcible possession was taken. The executing court had no jurisdiction in the matter of issuing any order against the police authorities, inasmuch as, the police authorities had acted on the basis of an order passed under S. 144 of the Code of Crimial Procedure. A process issued by the Civil Court, which was a judicial process, was executed by an administrative order passed by the executive Magistrate. The deployment of police force by an administrative order under S. 144 for taking over possession with police help on the strength of a simple process issued by the executing court under O. 21, R. 24(3) is, in our view, a void order and does not exist in the eye of law. If a decree passed by a Civil Court is executed by the order of the Executive Magistrate who ordered for execution of the decree not under the Civil Procedure Code. If the decree was not executed in accordance of the order of the executing court it does not come within the scope of S. 47 of the Code. The execution was on the face of it void and in our view, the same can be challenged wherever it is sought to be enforced, it is not necessary that the same has to be set aside.
25. Supreme Court in the case of Kiran Singh v. Chaman Paswan held that "It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial and whether it is in respect of the subject-matter of ' the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties."
26. If the execution was made without jurisdiction and without the authority of law, which is a nullity, its invalidity can be set up whenever and wherever it was sought to be enforced and accordingly, the judgment-debtor is entitled to relief before this court. It is well established principle that the executing court cannot go behind the decree. But if the decree was passed without jurisdiction and is a nullity, even at the execution stage, its invalidity could be set up even at the stage of execution. An order which is null and void can be challenged whereever it is sought to be enforced and wherever a party is aggrieved by the said order. In the instant case, the judgment-debtor was dispossessed in a manner which was gross abuse of process of court and when the process was void by gross abuse of process of court, somebody's eviction is not an eviction in the eye of law. It is firmly etablished principle that 0.21 of the Code provides a complete procedure for executing a decree and as such a decree could not be executed and possession of the property could not be taken by taking recourse to means beyond the provisions of O. 21 or by extra judicial methods.
27. In this connection, the observation of Sir Asuthosh in the case of Jyoti Prakas reported in (1922) 36 Cal LJ 124 : (AIR 1922 Cal 274) is referred to which was as follows :
"There is thus no escape from the conclusion that the case before us attracts the operation of the fundamental rule that if a court, authorised by a statute to exercise jurisdiction in a particular class of cases only, nevertheless undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, to the Court acts without jurisdiction so that its judgment is a nullity and will be so treated when it comes in question either directly or collaterally."
28. In our view, it is the duty of the court to prevent the abuse of the process of court and when it appears that such a tendency has grown up by flouting the provision of law by adoption of unfair means and deployment of extra-judicial power. In the instant case, admittedly, the process that was issued under O.21, R.24(3) of the C.P. Code did not mention the date on or before the decree has to be executed and from the language used in that order, it is clear that non-mentioning of such a date on or before which the decree has to be executed, the process is void and we are in agreement of this Court in the case of Dipak Kumar Munshi v. Meera Chatterjee, reported in (1986) 2 Cat HN 350, wherein it was held that non-mentioning of the date on or before which the decree has to be executed in the process issued under O.21, R. 24(3), the process would become void and if any dispossession has been made on the basis of such void process the same has to be restored back to the judgment-debtor.
29. With regard to the scope of S. 47 of the Code of Civil Procedure, we are of the view that S. 47 of the Code of Civil Procedure clearly laid down that all questions arise between the parties in the suit in which decree was passed relating to execution, discharge or satisfaction of the decree shall be determined by the court executing a decree by the court and not in a separate suit. Here for execution, discharge and satisfaction of a decree suit is clearly barred and where the execution has been made not by the executing court in the manner provided under Civil Procedure Code, but in a manner which amounts afraud upon the Statute, in our view, this question cannot be said to be within the exclusive jurisdiction of the executing court under Section decree in excess or there was a wrong identification but it is a case of executing a decree with police help by an order of the Executive Magistrate who has no jurisdiction to pass such an order. In this case, the decree was not executed by the executing court but by the Executive Magistrate. All questions relating to execution are clearly with the jurisdiction of the executing court. Even if there was no decree in respect of the property, the executing court cannot execute a decree in respect of the property in respect of which no decree would be clearly void, inasmuch as, that would amount to allowing the executing court to go beyond the decree. Further in the instant case, the executing court is powerless in granting relief. Apart from that the executing court had become a party to this specially contrived measure by which the dispossession was made. It was the duty of the executing court to direct the bailiff not to go to the police station and on the contrary, to direct and not to take police help unless specifically an order was passed by the executing court in accordance with the provisions of the Code of Civil Procedure. The action cannot be said to be bona fide and in accordance with law. It is not a case of irregular exercise of power. It was a case of forcible dispossession by police force flouting the provisions of law. It was not a case of executing the decree in accordance with law. It was submitted that the High Court after admitting the second appeal in such circumstances, is powerless to grant any relief. We are unable to agree with such submission made by Mr. Ghosh learned Advocate appearing on behalf of the decree-holder who had taken law in his own hand and is guilty in acting in a manner which amounts to gross abuse of the process of law. It is he who was the instrumentality and who had adopted a specially contrived measure, High Court under Art. 227 of the Constitution had a general power of Superintendence of all courts and the expression 'Court' includes the executing court also and can call for return from such court. In such a case, the court has called for a report from the learned Munsif and it also appears from the report that there had been grave dereliction of duty and abuse of the process of law which has resulted in grave injustice to the judgment-debtor. Legal process, if regular, does not afford a cause of action, but a legal process was mala fide issued and gross abuse of process of law affords a cause of action to the persons aggrieved. A legal maxim "Actus Curiae Neminem Gravabit" means an act of the Court shall prejudice no man. This maxim is founded upon justice. Accordingly, it must be held that if any dispossession had taken place save by authority of law, a party who had been dispossessed is entitled to get relief and he cannot be made to suffer because of illegal dispossession which is contrary to law.
30. In this case, it is submitted that the Executive Magistrate had passed an order on a petition filed by the decree-holder for drawing up a proceeding under S. 107/144(2) of the Code of Criminal Procedure, whereupon the Executive Magistrate straightway passed an order directing the police help for the purpose of executing the decree passed by the Civil Court. The object of the proceeding under S. 144 of the Code of Criminal Procedure is to preserve public peace and tranquillity. In Gulam Abbas v. State of U. P. , the Supreme Court explained the scope of S, 144 of the Code of Criminal Procedure and held that the entire basis of action under S. 144 of the Code of Criminal Procedure is provided by the urgency of the situation and the power thereunder is intended to avail of for preventing disorder, obstruction and annoyance with a view to secure public weal by maintaining public peace and tranquillity and observed that "it is true that before passing the order the District Magistrate, Sub-Divisional Magistrate or the Executive Magistrate gives a hearing to parties except in cases of emergency when ex parte order can be made under S. 144(2) by him without notice to the person or persons against whom it is directed, but in which cases on an application made by any aggrieved person he has to give hearing to such person under S. 144(5) and thereupon he may rescind or alter his earlier order. It is also true that such an order made by the Executive Magistrate is revisable under S. 397 of the Code because under the explanation to that section all Magistrates, whether executive or judicial or whether exercising appellate or original jurisdiction are deemed to be inferior courts for purposes of the revisional power of the High Court or Court of Session. But the fact that the parties and particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alteram partem rule which are regarded as essential in the performance of any executive or administrative function."
31. In this case it was also held by the Supreme Court that order under S. 144 is administrative in nature and not judicial or quasi-judicial. In the instant case, it appears that before the order was passed for police help, no notice was given to the judgment-debtor and no hearing was given but the order was passed ex parte. In a case where an emergency situation arises, the Executive Magistrate is authorised to pass ex parte order. In the instant case, admittedly, there was no urgency involved in such a case which had warranted the necessity of passing an order for preventing public disorder. In this case, no proceeding had been drawn up, no show cause notice was issued and the judgment-debtor was not heard before the order was passed. The manner in which power was exercised by the Executive Magistrate in the facts and circumstances of the case, clearly indicates that the order was passed for an unauthorised purpose. Before an ex parte order was passed the learned Magistrate had to be satisfied the urgency of the situation under which the ex parte order was passed. In the instant, case, the only allegation that has been made is that there is a possibility of resistance at the time of taking possession by the bailiff and that the possession was sought to be taken on the basis of the process issued by the Executive Magistrate, we are of the view, that in the facts and circumstances of the case, the learned Magistrate had exceeded the jurisdiction and acted mala fide in passing such ex parte order, inasmuch as, there was emergency situation and secondly, Civil Procedure Code provides the provision in case of resistance given at the time of taking over possession by the bailiff, the Executive Magistrate had passed the order knowing fully well and having reason to believe that the order was passed for an unauthorised purpose. Exercise of statutory power is invalid, unless the repository power is acted honestly and in good faith. The deliberate promotion of a purpose, be it public or private alien to that for which power was conferred is to be regarded as an act of bad faith. There was nothing on record to justify the action taken by the Executive Magistrate in the facts and circumstances of the case. The order under S. 144 of the Code of Criminal Procedure was passed for an unauthorised purpose as hereinbefore stated and inasmuch as, the said ex parte order was passed not because of existence of any emergency situation but obtained for an unauthorised purpose at the behest of the decree-holder and further the Executive Magistrate had no authority or jurisdiction to pass order for police help for the purpose of taking over property on the basis of the decree obtained by the Civil Court. This is not permissible under the provision of the Civil Procedure Code. It must also be mentioned that in the instant case, the officer-in-charge of Titagarh Police Station also had acted in collusion with the decree-holder, inasmuch as, on the very day the Executive Magistrate passed an order directing the police authorities to submit a report and the police authorities, it appears in course of the same day and with an unpre- cendented speed, submitted a got up report that there was a likelihood of resistance at the time of taking over possession. It must 6e remembered that the petition under S. 144 of the Code of Criminal Procedure was started against a widow lady and in the facts and circumstances of the ease, it cannot be said to have acted bona fide at all. It is a clear case where the police authorities acted in a reckless manner. In the instant case, the speed in which the police authorities and the Executive Magistrate had acted, has clearly established beyond all reasonable doubts that they have not only acted in collusion with each other, but there was a gross abuse of the power contrary to public interest and that such an act is bound to shake the people's confidence in the police and the Executive Magistrate. The manner in which the Executive Magistrate had acted, calls for serious consideration. The laws of procedure should not be allowed to be applied in a manner which would frustrate the very purpose and object of the law. This is a clear case of deprivation of property without any authority of law. Art. 300A of the Constitution of India provides that no person shall deprive of his property save by authority of law. In the instant case, the deprivation of property was made with the help of police force which was rendered by the Executive Magistrate illegally and without jurisdiction and that in the facts and circumstances of the case, we have no option but to hold that it was a clear case of deprivation of property of a person in clear violation of Art. 300A of the Constitution of India. Anything done contrary to the provisions of Constitution, shall be treated to be void. Under Art. 300A of the Constitution the Executive Magistrate cannot deprive the person of property without specific legal authority which can be established in the court of law. In the instant case, dispossession was made without any authority of law. In our view, the said purported order of the Executive Magistrate cannot be said to be an authorised order and in the facts and circumstances of the case it cannot be said to be bona fide.
32. Mr. Ghosh submitted that this court sitting in second appeal should act strictly in accordance with law and should uphold the law and if any order is passed by this Court in favour of the appellant that would be contrary to law, we are unable to accept such submission. If during the pendency of the appeal the possession of the property of the judgment-debtor had been taken over unlawfully by practising a fraud upon the statute and in a manner which is contrary to law and offending the provision of Art. 300A of the Constitution of India, this court had every jurisdiction to pass appropriate order, inasmuch as, the interim order is passed in aid of the main relief in pending of the appeal before this court. Supreme Court in the case of Chinnamal v. P. P. Arumughan wherein Supreme Court held that
the Code of Civil Procedure is a body of procedural law designed to facilitate justice. The laws of procedure should be so construed as to render justice wherever reasonably possible. In the instant case, the process that was issued by the executing court has fully violated the mandatory provision of law for non-mentioning the date on or before which the decree has to be executed which rendered the process invalid and secondly, on the basis of an invalid process, the possession was taken over with police help under order passed by the Executive Magistrate, under a procedure which is de hors of the statute. Such a forceful dispossession by an order of the Executive Magistrate with police help is not a dispossession in the eye of law, inasmuch as, such dispossession had been made not in accordance with law. Under such circumstances, when action has been taken without jurisdiction without the authority of law and in manner which amounts to gross abuse of process of law, it is the duty of the court to restore back the possession to render justice and to set right the grievous wrong. If any dispossession is made by gross abuse of process of court, it is the duty to restore back the possession. Since the second appeal has been admitted, this court was of the view that the effect of the decree cannot be given during the pendency of the appeal and the decree has been executed unlawfully and illegally and in the manner which amounts to a fraud upon the statute and that such a dispossession could not be said to be dispossession under the law. This court, in our view, had every jurisdiction to issue a mandatory injunction directing the restoration of property and to keep the property in possession of the judgment-debtor till the disposal of the appeal. In the facts and circumstances of the case, we have no hesitation in holding that the things were done in such a manner which docs not per se amount to excess of jurisdiction but it was a deliberate case of committing fraud upon the statute by the authorities concerned at the instance and machination of the decree-holder. Under the Civil Procedure Code, a decree has to be executed strictly according to the provisions of the Code. The decree cannot be executed with the police force dehors the provisions of the Civil Procedure Code. After all it was a decree passed by the Civil Court. Taking of police help is an extreme method even under the Code and that in the instant case, it was clear to us that the procedure that was adopted, was wholly unlawful, illegal and void. If the submissions of Mr. Ghosh are accepted, in that event, that would amount to give a go-bye to the practice and procedure laid down by the Civil Procedure Code and this will encourage the litigants to commit fraud upon the statute and will encourage the litigant to take over possession of the property forcibly who have extra judicial means and power. If this extra judicial methods and means are allowed to be prevailed, in that event, that would destroy the present judicial system in our country.
33. Considering the facts and circumstances of the case, the Receiver already appointed is directed to make over possession back to the judgment-debtor with police help and the Officer-in-charge of Titagarh Police Station is directed to render all necessary assistance, to the Receiver to make over possession to the judgment-debtor dispossessing decree-holder's possession in respect of the property in question and to see that the possessions given in terms of the order are maintained till the disposal of the appeal, Such possession should be made over within five days from today. This order is passed on the application for injunction by which the decree-holder is directed to be dispossessed and the possession be handed over to the judgment-debtor and the judgment-debtor shall remain in possession pending disposal of the appeal under the Receiver appointed by this court for the ends of justice.
34. In the instant case the Bailiff concerned has acted in a manner which is blatantly unbecoming of an officer of the court inasmuch as in his report he has suppressed the fact that possession in question was obtained by him with the police help. He also suppressed the fact that he went to the police station for the purpose of obtaining police help and that he has signed the police papers in documents of proof that the police has given assistance for the purpose of taking delivery of possession.
35. In the facts and circumstances of the case, we cannot simply ignore the conduct of the Bailiff concerned. After all he was en-trusted with the duties of executing a writ of possession, but the manner in which he has executed the writ and submitted his report is far from satisfactory and calls for an investigation into the matter and to take appropriate steps by the authorities concerned, so that such thing may not recur in future.
36. Before we part with the matter we make it clear that in the matter of taking over of possession on the basis of an execution of process started by executing court, the only authority who can give police assistance is the executing court and no other complying with Order 21 Rule 97 of the Code of- Civil Procedure read with Rule 208 of the Civil Rules and Orders. In a proceeding initiated under S. 144 of the Code of Criminal Procedure the Executive Magistrate cannot have any power to render any police assistance which would have an overriding effect and nullify the provisions of the Code of Civil Procedure. Such a practice which is dehors the provisions of the statute must be stopped. Of course, it is well within the power of the Executive Magistrate to draw up a proceeding under S. 144 of the Code of Criminal Procedure within the guidelines and circumstances given in the Code of Criminal Procedure and not otherwise. The manner in which the Executive Magistrate has acted which has been pointed out by us cannot be ignored and ill the facts and circumstances of the case we express our great displeasure so far as the action of the Executive Magistrate is concerned. The Executive Magistrate must know the limitation in the matter of passing an order, specially in the matter relating to and in relation to the civil rights and proceedings pending before the competent civil court.
37. There is a basic distinction between the legal process issued under Civil law and Criminal law. It is beyond the jurisdiction of the Executive Magistrate under/S. 107/144 of the Code of Criminal Procedure to pass any order for executing a process for recovery of possession issued by the civil court with the police force and that too behind the back and without the knowledge of the party affected.
38. Accordingly, the application is allowed with costs assessed at 300 gms. to be paid by the decree-holder to the judgment-debtor.
39. The remuneration of the Receiver/ Special Officer is initially fixed at 100 gms. and thereafter 30 G.M.S. per month to be paid by the appellant until further orders.
40. Let a copy of this order be forwarded to the District Judge, Barasat and the District Magistrate, North 24-Parganas through the Registrar, Appellate Side of this Court for taking necessary steps in the matter, so that such illegal thing may not happen in future.
41. Oral prayer for stay of the operation of this order made by Mr. Ghosh, appearing for the respondent/opposite parties is refused.
42. Let a plain copy of the relevant ordering portion of this order be given to the Receiver/Special Officer countersigned by the Assistant Registrar (Court).
43. Let a xerox copy of this order be given to the learned Advocates for the parties on usual terms and conditions.
Sachi Kanta Hazari, J.
44. I agree.
45. Application allowed.