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Calcutta High Court
Radhika Mohun Shaha And Ors. vs Gyan Chandra Shaha on 9 March, 1910
Equivalent citations: 6 Ind Cas 120
Bench: Mookerjee, Teunon


1. We are invited in this Rule to set aside an order made by the Court below by which execution has been directed to proceed on the basis of a decree in a suit for partition of joint property. The opposite party before us obtained a decree in a suit for partition. When he attempted to obtain delivery of possession of his allotment, he was resisted by the petitioners. The result was that he made an application to the Court under Order 21, Rule 97, on the allegation that resistance was offered by the petitioners in collusion with the judgment-debtor and substantially at his instigation. This was denied by the persons who had offered the obstruction. There was an investigation and the Court came to the conclusion upon the evidence that resistance was not offered by the judgment-debtor, nor by any person at his instigation. The Subordinate Judge, however, found on the evidence that the persons who had caused the obstruction had not been in possession of the property and that consequently they could not be said to claim in good faith to be in possession of the property on their own account or on account of some person other than the judgment-debtor. In this view, the Subordinate Judge granted the application made under Order 21, Rule 97, and ordered possession to be delivered to the decree-holder. In the present Rule, we are invited to set aside that order on the ground that it is not one contemplated by either Rule 98 or Rule 99 of Order 21 of the Code, and consequently must be treated as made without jurisdiction.

2. It has not been disputed on behalf of the opposite party that the terms of Rules 98 and 99 are not applicable to the circumstances of the present case, but it has been contended that the Court had inherent power to make the order which it has passed. Order 21, Rule 97, which deals generally with the case of resistance and obstruction to delivery of possession of immovable property, provides broadly that when the holder of a decree for possession of immovable property or the purchaser of any such propel ty sold in execution of a decree is resisted or obstructed by any person in obtaining delivery of possession of the property, he may make an application to the Court complaining of such resistance or obstruction. Rule 98 then deals with the case of resistance and obstruction either by the judgment-debtor himself or by some person at his instigation. Rule 99 next deals with the case of resistance or obstruction by bona fide claimants. The Code thus makes no express provision for the case of resistance or obstruction by a claimant other than the judgment-debtor who is not in possession and who makes no bona fide claim to be in possession of the property. It may be conceded, therefore, that there is no provision in the Code which precisely covers the present case. The learned Vakil for the petitioners contends that as the Code is silent in this matter, the Court is powerless when resistance or obstruction is offered by a person who is not the judgment-debtor and who has not a bona fide claim to the possession of the property. The substance of this argument is that if a stranger to the execution proceedings acts in defiance of the authority of the Court, the Court is helpless to enforce its decree. In our opinion, there is no foundation for this contention. Section 151 of the Code, which recognises the inherent power of a Court to make such orders as may be necessary for the ends of justice, completely covers the case.

3. It has been strenuously contended, however, that the doctrine of inherent powers of a Court of Justice is not applicable to the present case by reason of two circumstances. In the first place, it has been contended that as provision, is made in the Code for certain specified cases of resistance or obstruction to delivery of possession of immovable property, there is no room for the exercise of the inherent powers of a Court in other cases not covered by the Rules. In support of this proposition reliance has been placed upon the cases of Panchanan Singha Roy v. Dwarka Nath Roy 3 C.L.J. 29 and Hukum Chand Baid v. Kamalanand Singh 3 C.L.J. 67 : 33 C. 927. Neither of these cases, however, lends any support to the contentions of the learned Vakil for the petitioners. In both these cases, this Court was invited to stay proceedings during the pendency of appeals preferred against orders made by the Court below. The Code contained provisions for the stay of proceedings under certain specified circumstances which were inapplicable to the cases then before the Court; yet it was held that this Court could, in the exercise of its inherent powers, make an order for stay of proceedings. It was pointed out that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and that, therefore, on any point specifically dealt with by the Code, the Courts are bound to follow the statutory provisions; where, however, the Code is silent, the Court is entitled to pass necessary orders in accordance with the rules of equity, justice and good conscience. [See Narsingh. Das v. Mangal Dubey 5 A. 163, Chhayunnessa Bibi v. Kazi Basirar Rahman 11 C.L.J. 285 at p. 289 : 5 Ind. Cas. 585, Kendall v. Hamilton (1879) 4 A.C. 504 at p. 525 : 48 L.J.C.P. 705 : 41 L.T. 418 : 28 W.R. 97.] In the second place, it has been argued that this Court or indeed any Court will not exercise its inherent powers as against a person who is not a party to the original suit; in other words, that the doctrine of inherent powers is restricted only to suits and cannot be applied to proceedings other than suits. No authority has been shown in support of any such limitation. On the other hand, there are instances in which the Court has exercised its inherent powers even as against a person who is not a party to a suit or proceeding. It is sufficient to refer to the decision of their Lordships of the Judicial Committee in the case of Surendra Nath Banerjee v. Chief Justice, and the Judges of the High Court of Bengal 10 C. 109 : 10 I.A. 171, in which it was ruled that this Court had power to punish summarily by imprisonment contempt of Court committed by the publication of a libel out of Court when the Court is not sitting. We are unable, therefore, to accept as well-founded the contentions of the petitioner that the exercise of the inherent powers of a Court should be restricted in the manner suggested. No doubt the exercise of inherent powers must be judicial and not arbitrary, and must be regulated upon general principles, with due regard to the provisions of the Code upon analogous matters: but it is impossible to lay down any inflexible rule that the inherent powers of a Court cannot be exercised in favour of or against a person who is not a party to the original suit.

4. The result, therefore, is that the order made by the Court below must be affirmed and this Rule discharged with costs. We assess the hearing fee at two gold mohurs.

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