Govind Swamy and Others vs P.S. Narasimha Murthy and Others

B.S. Patil, J.—This revision petition is filed by judgment debtor No. 2 under Section 115 CPC challenging the order dated 26.06.2012 passed by the Executing Court in Ex. No. 1760/2011. The Executing Court has taken on record a memo filed by the decree holder reporting delivery of possession of the premises in question and full satisfaction of the decree and based on the same after hearing both parties, the execution petition has been closed as fully satisfied.

Grievance of the revision petitioner - judgment debtor No. 2 in this revision petition is that the decree has been executed by issuing delivery warrant with police help and possession of the property has been taken from the revision petitioner/judgment debtor No. 2 without following the due procedure, inasmuch as notice of the execution petition was not served on him.

Learned counsel for the revision petitioner invites the attention of the Court to the order sheet maintained by the Executing Court to point out that on 14.09.2011 cause notice was issued to the judgment debtors returnable by 25.01.2012. On 25.01.2012, as notices had not been served, the Court ordered reissue of notice by 17.03.2012. On 17.03.2012, the matter was adjourned for steps to be taken by 31.07.2012. However, on 02.06.2012, advocate for the decree holder filed an application to advance the case and also for issue of delivery warrant and for police help.

In the affidavit filed in support of the said application, the decree holder stated that RFA. No. 1218/2002 filed before the High Court by the judgment debtors challenging the decree passed by the Trial Court was dismissed and that judgment debtor being a very influential person was resisting execution of the decree, therefore, it was just and necessary to direct the police to give protection at the time of execution of the decree. Based on this application, the Executing Court passed an order on 02.06.2012 directing issuance of delivery warrant with police help and the matter was adjourned to 31.07.2012. The case was again advanced to 26.06.2012 at the instance of the decree holder and the Court recorded the memo filed by the decree holder reporting satisfaction of the decree.

It is necessary to state at this stage that the suit was filed for declaration and possession of the suit property in O.S. No. 2191/1985. The suit was decreed on 21.08.2002. Aggrieved by the same, defendant/judgment debtors filed RFA. No. 1218/2002. The said RFA was dismissed on merits on 08.02.2012. However, during the pendency of the RFA, execution petition was filed in Ex. No. 1760/2011 as there was no interim order of stay of the decree passed by the Trial Court.

Having heard the learned counsel for both parties, the question that falls for consideration in this revision petition is:--

"Whether the Executing Court was right and justified in recording satisfaction of the decree without ensuring that cause notice issued to the judgment debtor No. 2 was served and he was given an opportunity to have his say before the proceedings were closed?

Order XXI Rule 22 CPC reads as under:

"22. Notice to show cause against execution in certain cases.-

(1) When an application for execution is made,-

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44-A, or

(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,

the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution, if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person, the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."

It is clear from the provision extracted above that notice to show cause against the execution was required to be issued to the judgment debtors. Indeed notice was issued to the judgment debtors by the Executing Court. However, before the notice was served, an application was filed by the decree holder seeking advancement of the case and for issue of delivery warrant and for police help. The Court below has allowed the said application. Pursuant to the delivery warrant issued, the decree holder has taken possession of the property.

Thus, it emerges that without hearing the judgment debtor the decree has been executed. Although fact remains that the matter has been litigated for the last more than 27 years and the judgment debtor has failed before the Trial Court, before this Court and also before the Apex Court, it is apparent that he was not heard before the decree was enforced.

It is submitted by the counsel for the revision petitioner that larger extent of land has been taken over in the guise of executing the decree over and above what the decree holder was entitled to. Be that as it may. Records have to be put straight. Order XXI Rule 22 CPC has not been complied with by the Court below. Though it is contended by the revision petitioner that the decree holder has misrepresented before the Court below and has obtained such an order by advancing the case with malafide intention, I have no reason to accept this contention of the revision petitioner. No such intention on the part of the decree holder can be inferred in the facts and circumstances of the case.

It is true the Court below has not ensured service of notice on the judgment debtors. Therefore, the proceedings culminating in delivery of possession are vitiated. Whether any larger extent of land over and above what the decree holder was entitled has been delivered to him has to be examined by providing an opportunity. At any rate, now that a fresh opportunity is required to be given to the judgment debtor, it will be open for him to urge the legal contentions available to him.

This revision petition is, therefore, allowed. Order closing the execution proceedings is set aside. The Executing Court is directed to provide an opportunity to the judgment debtor and thereafter, pass an order in accordance with law after hearing both parties. Both parties are directed to appear before the Executing Court on 16.12.2015. It is made clear that the benefit of this order is confined only to judgment debtor No. 2 and judgment debtor Nos. 1 & 3 who have not chosen to approach this Court and have not made any grievance against the order under challenge will not be entitled for the benefit of this order.