Muthammal vs Kaveriammal and Others

M.N. Chandurkar, J.—The plaintiff-decree holder, who is the petitioner in both the revision petitions, had filed a suit for possession of

immovable property in which she had obtained a decree as far back as on 5-12-1972. The first appeal filed by the judgment debtor came to be

dismissed on 6-12-1974, and the second appeal filed by her also came to be dismissed on 20-7-1978. The decree holder then took steps to

execute the decree and filed an execution petition on 14-7-1983. It was posted on 25-8-1983, but since the decree-holder did not take any steps

to have the notice served on the judgment-debtor, it was dismissed on 31-8-1983. On the same day, the decree-holder filed another execution

petition and obtained a warrant for possession. The possession of the property was also delivered on 8-9-1983. The judgment debtor filed an

application before the executing court that the delivery of possession should not be recorded because, the order for delivery of possession was

made without issuing a notice to her as required by O. 21, R. 22, C.P.C. This application has been allowed and the execution proceedings were

closed. This order of the learned Subordinate Judge, Udumalpet, is challenged in these revision petitions.

The learned counsel appearing on behalf of the judgment-debtor did not dispute the fact that if a decree was to be executed more than two

years after the date of the decree of the second appellate court, a notice to the judgment-debtor was necessary, if the first execution petition was

filed after more than two years from the date of the decree. But he placed reliance on the proviso to O. 21, R. 22, C.P. Code, which reads as

follows-

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 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.

The argument is that no notice was required to be issued to the judgment-debtor in view of the proviso, since the execution petition was filed within

a period of two years from the date of the last order. The last order in this case, according to the learned counsel, was made on 31-8-1983, and

since on the same day, a fresh execution petition has been filed, the case is squarely covered by the proviso.

When this contention is advanced, it is obviously overlooked that the period of two years from the last order contemplated by the proviso is not

from the date of the decree but only from the date of the last order which is against the person against whom execution is applied for. The effect of

the proviso, therefore, is that even though execution proceedings are taken beyond the period of two years from the date of the decree, if the

execution petition is filed within two years from the date of the last order against the judgment debtor, then no notice as required by O. 21, R. 22,

C.P. Code need to be served. In other words, only if the last order is against the judgment-debtor, then only liberty is given to apply for execution

within a period of two years from that date and a fresh notice is not necessary in view of the proviso to O. 21, R. 22, C.P.C. The proviso to O. 21

, R. 22, C.P.C. will not be attracted in the instant case, when the first execution petition was itself-filed beyond a period of two years from the date

of the decree and it was dismissed even without notice to the judgment-debtor.

In the present case, the dismissal of the execution petition on 31-8-1983, cannot be said to be an order against the judgment-debtor. As a

matter of fact, the dismissal of an execution petition would be an order in favour of the judgment-debtor. Since the order dt. 31-8-1983 could not

be said to have befit passed against the judgment-debtor, the decree-holder, in the instant case, is not entitled to the benefit of the proviso. The

executing court was, therefore, right in taking the view that a notice of the execution proceedings was necessary to the judgment-debtor because

the execution petition has been filed beyond the period of two years from the date of the decree sought to be executed.

There is no substance in both the revision petitions and they are, accordingly, dismissed. However I make no order as to costs.

Petitions dismissed.