B.P.Banerjee, J. - (1.) This is an appeal against an order dated 14th January, 1993 passed by the learned trial Judge in Extraordinary Suit No. 20A of 1987, on an application for execution of a decree for possession of the immovable property. The plaintiff-respondent filed a suit for eviction of the appellant-defendant who was a tenant in respect of the premises in question. The Ejectment Suit was originally filed in Alipore, 24-Parganas (before its bifurcation) being Title Suit No. 36 of 1981.
(2.) The case had a chequered career. The appellant was a tenant under the defendant-respondent in respect of the suit premises situated at 2/8B, Sarat Bose Road in respect of the ground floor with three service rooms on the first floor of the out-house of the premises No. 2/8B, Sarat Bose Road, Calcutta. The defendant-appellant undertook to vacate the premises by 31st October, 1975 and thereafter the appellant-tenant failed to vacate the suit premises. The plaintiff-respondent thereafter served a notice to quit under section 13(6) of West Bengal Premises Tenancy Act, 1956 requiring the appellant to quit and vacate the premises also on the ground of reasonable requirement. The tenant appellant was called upon to vacate the premises by 31st July, 1980. Notice was served as the respondent-landlord wanted to avail of additional ground for eviction. Immediately on receipt of the notice to quit the appellant-tenant filed a suit in the Original Side of this Court being Suit -No. 583 of 1980 challenging the validity and/or legality of the Notice to quit dt. 13/14th June, 1980 and for a declaration that the appellant/tenant continued to be a monthly tenant. Thereafter on 7th August, 1980 the plaintiff-respondent instituted a suit for ejectment before the District Court at Alipore being Title Suit No. 37 of 1980. An Application was taken out by the plaintiff-respondent for dismissal of the Suit No. 583 of 1980 filed in this court on the ground of lack of jurisdiction and that by the order dated 25th March, 1981 the suit filed the appellant in this court was dismissed. The appellant thereafter preferred an appeal from the said order dt. 25th March, 1980. Thereafter the appellant filed an application for stay of the eviction suit at Alipore Court in Title Suit No. 37 of 1980 under section 10 of the Code of Civil Procedure on the ground of the pendency of the suit filed by the appellant in the High Court. By the order dt. 19th November, 1983 an application under section 10 of the Code of Civil Procedure was allowed by Alipore Court and the eviction suit against the appellant was stayed. The said order of stay under section 10 of the Code of Civil Procedure was challenged by the respondent-plaintiff before this court which was set aside by this court on 14th July, 1984. The appellant being aggrieved by the said order dated 14th July, 1984 setting aside the order of stay under section 10 of the Code of Civil Procedure moved a Special leave Petition to the Supreme Court which was dismissed on 27th December, 1984. In 1987 the Alipore Suit was transferred to this Court under Clause 13 of the Letters Patent by consent of the parties. Ultimately, eviction suit was decreed by this court on 3rd May, 1992. The judgment-decree dt. 3rd May, 1992 passed in the said eviction suit by this court was challenged in appeal filed by appellant and the appeal court dismissed the said appeal and affirmed the decree for eviction on 14th December, 1992 in Appeal No. 224 of 1991. Special Leave Petition was filed before the Supreme Court against the judgment passed by the Appeal Court on 14th December, 1992 but the said Special Leave Petition was also dismissed by the Supreme Court. For the purpose of recovery of possession an application for execution of the decree was filed before the learned trial Judge with a prayer for appointment of Receiver over the suit premises for execution with direction to take over physical possession of the same from the appellant judgment-debtor and deliver vacant possession therefore to the respondent-decree holder by removing judgment debtor and/or Mr. R. L. Bathwal, its agents, employees assignees or any other person claiming it or in occupation of the suit premises. An alternative prayer was also made for execution of the decree by directing the Sheriff to hand over either by himself or through his agent the vacant possession of the suit premises. The said application for execution was duly contested by the judgment-debtor/appellant and the learned trial Judge after considering the rival contentions of the parties appointed Mr. Ashim Ghosh, Bar-at-Law and Mr. Samrat Sen, Advocate as Joint Receivers in respect of the suit premises which was directed to take over possession and in case of any resistance to use police force for the purpose of recovery of possession.
(3.) Mr. Anindya Kumar Mitra, learned counsel appearing on behalf of the appellant submitted that for the purpose of executing the eviction decree by dispossessing the judgement-debtor, the execution court has no power to appoint a Receiver at the first instance with a direction to recover possession and in case of resistance to take police help and recover possession. Mr. Mitra submitted that for the purpose of recovery of possession by executing the decree the ordinary modes of execution as provided in the Code of Civil Procedure has to be followed and that as the property is situated outside the jurisdiction of this court, the decree should be sent for execution to the original court in which the suit was first instituted and that court alone has got the territorial jurisdiction to execute the decree. It was next submitted by Mr. Mitra that the Receiver could only be appointed in a case when no other mode of execution was provided under the law. In this connection, Mr. Mitra referred the provision of section 51 of the Code of Civil Procedure which provides several modes of execution of a decree subject to such conditions and limitations as may be prescribed and that the provisions of section 51 (d) of the Civil Procedure Code provides for execution of a decree by appointing a Receiver. But such a drastic power would not be exercised unless a case has made out for appointment of Receiver on the basis of the principles laid down in Order 40 Rule 1 of the Code of Civil Procedure. It was submitted that for the purpose of appointing Receiver a Special case has to be made out. It was further submitted that whenever Receiver is appointed such a Receiver has all the powers under Order 40 Rule 1 and that Receiver could only be appointed where there is no effective remedy for execution in law. It was further submitted that no case had been made out in the application for appointment of Receiver. Receiver cannot be appointed merely by making a prayer for appointment of Receiver, circumventing ordinary and usual procedure for eviction of a decree. It wits pointed out that ordinary mode of execution of a decree for eviction and recovery of possession is to execute the decree through the court Bailiff and in case of resistance, the court has power to order for police help on being satisfied with that the judgment debutor had resisted the bailiff and because of resistance bailiff could not take possession. It was further submitted that appointment of Receiver and taking over possession with police help is an extreme method which is a very harsh and should take recourse as a last resort. It was further submitted that a party can only be disposed in accordance with procedure prescribed by law and that it is not the law to take possession by eviction through Receiver and that too with police help in case of resistance at the first instance. Reliance was placed to the decision of the Division Bench of this court in the case of Raja Pramath Nath Malia v. H. V. Low and Company, reported in 34 CWN 328 wherein it has been held that this court, on its original side, has power to appoint at his own hand a Receiver by way of execution in respect of property situated outside its ordinary original jurisdiction and belonging to a defendant who resides outside such jurisdiction. But it should be careful and sparing in the exercise of this power and should exercise it only on a proper case being made out from sufficient materials that it is necessary or advantageous that a Receiver should be appointed by itself. It cannot make an appointment on the sole ground that this is the only form of execution open to itself one can be availed of to enforce its decree as a matter of course. It was further held that while there is no express provision to this effect, the course Contemplated by the Code of Civil Procedure for sale in execution of immovable property is that they should be carried out by courts having territorial jurisdiction over such property although there can be exception to his principles. 3a. Reliance was also placed to another decision of Division Bench Judgement of this Court in the case Jugal Charan Mondal v. Pankajini reported in AIR 1961 Calcutta 183 wherein it was held that a court which has competently passed a decree, does not lose jurisdiction to execute it merely by reason of loss of territorial or pecuniary jurisdiction in the meantime. But this "jurisdiction to execute" means merely jurisdiction to entertain the execution application and to transfer it to the proper Court for execution, and it does not extend beyond that and it does not entitle the said court. in such circumstances, to proceed further with the court, having territorial and pecuniary jurisdiction in the matter, on appropriate transfer to it of the particular decree for execution, that is, for such purpose. It was contended by Mr. Mitra that in the instant case though the suit was transferred from Alipore Court to this court. under Clause 13 of the Letters patent the decree could not be executed by this Court and in this case for the purpose of execution of the decree in question an execution has to be physically made by Alipore Court having territorial jurisdiction over the property in question or in other words, it was submitted that this court has no jurisdiction to execute the decree in respect of the property situated beyond the territorial jurisdiction of this court even if the suit was disposed of by this Court on transfer.;