Calcutta High Court upholds that in the absence of an order staying execution, the executing court is empowered to proceed—including use of police help under Rule 208 of the Civil Rules and Orders—for effective delivery of possession pursuant to a decree. This judgment affirms existing precedent, reinforcing expeditious enforcement of decrees where no judicial stay exists; binding on subordinate courts within West Bengal.
Summary
| Category | Data |
|---|---|
| Date of Registration | 25-09-2025 |
| Decision Date | 24-10-2025 |
| Disposal Nature | DISMISSED |
| Judgment Author | HON’BLE JUSTICE HIRANMAY BHATTACHARYYA |
| Court | Calcutta High Court |
| Precedent Value | Binding precedent for subordinate courts within West Bengal |
| Overrules / Affirms | Affirms the practice of proceeding with execution in the absence of stay; no prior precedent overruled |
| Type of Law | Civil Procedure; Execution of Decrees |
| Questions of Law | Whether the executing court can grant police help for execution of a decree when no order of stay exists? |
| Ratio Decidendi |
The court held that, when there is no subsisting order of stay in respect of execution proceedings, the executing court is fully justified in proceeding with execution—including granting police help under Rule 208 of the Civil Rules and Orders for delivery of possession. The mere pendency of a challenge to the ex parte decree, or miscellaneous appeal, does not, in itself, operate as a stay. In the present facts, since the application for stay had been rejected and that rejection order was not challenged, there was no impediment to enforcement of the decree by the executing court. The finding of necessity for police help due to obstruction and apprehension of breach of peace was supported by depositions and bailiff’s report. There was no legal infirmity warranting interference under Article 227 of the Constitution. |
| Facts as Summarised by the Court |
An ex parte decree for possession was granted, and its setting aside was sought under Order 9 Rule 13 CPC but applications were rejected; a further miscellaneous appeal is pending. In absence of a stay, on evidence of obstruction, the executing court found police help necessary and allowed the decree holder’s application under Rule 208 of Civil Rules and Orders. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within the jurisdiction of the Calcutta High Court |
| Persuasive For | Other High Courts addressing similar execution and police help applications |
| Follows | Affirms the established principle that execution may proceed when no stay is in force |
What’s New / What Lawyers Should Note
- Reaffirms that rejection of stay makes execution proceedings viable—mere pendency of appeals cannot automatically stay execution.
- Explicit recognition of the executing court’s authority to grant police help under Rule 208 of the Civil Rules and Orders based on factual findings of obstruction and likely breach of peace.
- Lawyers for decree holders can rely on this judgment to expedite execution and secure police assistance in the face of obstruction, provided no stay operates.
- Judgment-debtors should seek and obtain express orders of stay if they wish to prevent execution—mere pendency of appeal or applications is insufficient.
Summary of Legal Reasoning
- The court meticulously considered the sequence of applications made by the judgment-debtors seeking to set aside the ex parte decree (under Order 9 Rule 13) and for stay of execution; all such applications were rejected, and no stay of the execution proceedings was ever granted.
- The executing court relied on direct evidence—bailiff’s report, and depositions of the decree holder and bailiff—that the delivery of possession was obstructed and there was risk of breach of peace, justifying the need for police help.
- The High Court noted that the factual findings regarding necessity for police intervention were made after due evaluation of materials and testimony before the executing court.
- Since the order rejecting stay was not challenged, and there existed no legal prohibition on proceeding with execution, the executing court had acted within jurisdiction and according to settled legal principles in allowing police help under Rule 208.
- The court found no infirmity or irregularity in the exercise of discretion by the executing court and dismissed the petition under Article 227.
Arguments by the Parties
Petitioner
- Opposite party obtained an ex parte decree.
- Petitioners applied under Order 9 Rule 13 CPC for setting aside the ex parte decree (application dismissed).
- Miscellaneous appeal against that order is pending.
- Application for stay of further execution proceedings was rejected.
- Sought High Court’s interference against the order allowing police help (Rule 208 application).
Respondent (Decree-holder)
- Detailed sequence of unsuccessful attempts by judgment-debtors to set aside decree and the absence of stay.
- Application for police help was necessary due to continuous obstruction by judgment-debtors.
- Decree-holder deprived of possession since 2014.
- Argued that the executing court acted correctly and justified in proceeding with execution.
Factual Background
The dispute arose from an ex parte decree for possession rendered in favour of the decree-holder in 2014. The judgment-debtors made several unsuccessful attempts to set aside the decree under Order 9 Rule 13 CPC, as well as under Section 151 CPC and by civil revision under Section 115A CPC. All such applications were rejected. While a miscellaneous appeal against the last rejection is pending, no corresponding stay of execution was ever granted, and a specific application for stay was also rejected and not appealed. During execution, the bailiff’s report and depositions indicated that delivery of possession was obstructed by the judgment-debtors, and police help was sought by the decree-holder, leading to the executing court’s order granting such assistance under Rule 208 of the Civil Rules and Orders.
Statutory Analysis
- Order 9 Rule 13, CPC: Considered regarding setting aside ex parte decree—applications by judgment-debtors had been dismissed.
- Section 151, CPC: Application for setting aside decree under inherent powers also dismissed.
- Rule 208 of the Civil Rules and Orders: Interpreted as empowering the executing court to grant police help for execution of a decree for possession when factual circumstances (like obstruction and apprehension of breach of peace) warrant.
- Article 227, Constitution of India: Scope of High Court’s supervisory jurisdiction considered; no interference warranted when subordinate court’s order is legally sound and supported by evidence.
Alert Indicators
- ✔ Precedent Followed – Existing law on execution and police help is affirmed.