Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Rules Nos. 523 and 524 of 1959, decided on 17th Dec ember 1959.
O. XXI, r. 100‑Provisions relating to execution of decrees‑Also applicable to execution of orders‑Civil Procedure Code (V of 1908), S. 36. Section 36 of the Code of Civil Procedure in express terms makes all the provisions "relating to the execution of decrees" applicable to the execution of orders. The provisions of Order XXI, rule 100 of the Code are certainly provisions relating to the execution of decrees and they are applicable to the execu tion of orders.
Debesh Chandra Bhattacharjee for Petitioners in both case.
A. M. Chowdhury for the Opposite Party in Case No. 523.
S. R. Pal with J. H. Khan for the Opposite‑Party No. 1 in Case No. 524.
Md. Yakub Hussain for Deputy Registrar in Case No. 524.
‑These two Rules were issued on two applica tions under section 115 of the Code of Civil Procedure in respect of the same property and our one judgment will govern both of them. The said applications arise in the following circum stances:‑
2. In the course of execution of a decree, which was obtained by the Province of East Bengal, the petitioners, who were not parties to the suit in which the decree was passed, were ousted from possession. Thereupon the petitioners applied to Court under Order XXI, rule 100 of the Code of Civil Procedure for restoration of possession. The Court below allowed the said application and passed an order in favour of the petitioners for restoration of possession. The Province of East Bengal had merely obtained symbolical possession, and did not take physical possession of the property in question. The petitioners there after put the order passed in their favour under Order XXI, rule 101 of the Code into execution. In the course of the execu tion of the said order the opposite‑parties before us were ousted from possession. The said opposite‑parties thereupon applied to the Court below under Order XXI, rule 100 of the Code for restoration, stating that they were actually in possession of the said property and that they had been ousted by an officer of the Court in the course of the execution of the order in favour of the petitioners. These applications were marked as Miscellaneous Cases Nos. 69 and 70 of 1957.
3. The learned Subordinate Judge, who heard and disposed of those applications, entered into the merits of the same and decided in favour of the opposite‑parties. Before him it was contended on behalf of the petitioners before us that Order XXI, rule 100 of the Code had no application to execution of orders. It was further contended that they were in actual possession of the property in question. The learned Subordinate Judge, decided both those contentions against the petitioners before us. He held that Order XXI, rule 100, of the Code also applied to execution of orders, and further that the opposite‑parties before us were in possession of the said property. He, therefore, passed an order in favour of the opposite‑parties under Order XXI, rule 101, of the Code.
4. Against the aforesaid order passed by the learned Sub ordinate Judge disposing of the said two miscellaneous cases, the petitioners moved this Court in the exercise of its civil revisional jurisdiction and obtained the present Rules.
5. At the hearing of these Rules Mr. Debesh Chandra Bkattacharjee, who appeared before us for the petitioners, refrained From addressing us on the merits of the case because it was con cluded by the finding of fact arrived at by the Court below. He, has, however, contended before us that the provisions of Order XXI, rule 100, of the Code of Civil Procedure do not apply to the execution of orders. He has drawn our attention to section 36 of the Code which reads as follows:
"The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders."
Upon a construction of the aforesaid provisions of section 36 of the Code, Mr. Bhattacharjee has argued that only such pro visions of the Code, which relate directly to the execution of decrees, have been made applicable to the execution of orders, and that conversely, such provisions, which are merely ancillary to the execution of decrees, have no application to the execution of orders.
6. The argument put forward by Mr. Bhattacharjee looks prima facie attractive; but on closer examination it will be found untenable. Section 36 of the Code in express terms makes all the provisions "relating to the execution of decrees" applicable to the execution of orders. The provisions of Order XXI, rule 100 of the Code are certainly provisions relating to the execution of decrees and, in our opinion, they are applicable to the execution of orders. We, therefore, hold that the provisions of Order XXI, rule 100, of the Code of Civil Procedure are appli cable to the execution of orders.
No other point was pressed before us.
We, therefore, hold that there is no substance in these revi sion petitions. The rules are, therefore, discharged without any order as to costs.
A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer