Nachayee Ammal and others vs V. Pichaimuthu

Srinivasan, J.—The petitioners obtained a decree for delivery of possession in O.S. No. 419 of 1988. The decree was passed ex parte on

6-7-1990. The respondent applied for setting aside the ex parte decree on 31-7-1990. When that application was pending, the respondent had

not obtained any order of stay. The decree-holders/plaintiffs applied for delivery of possession in the Executing Court and an order was passed on

3-12-1990 that delivery should be effected on or before 3-1-1991. The matter was posted on 7-1-1991 for final orders. On that date, the

delivery effected by the Amin was recorded by the court and the execution petition was closed.

The application filed by the respondent for setting aside the ex parte decree was dismissed on 7-2-1991. It is stated that an appeal has been

filed against that order and it is pending as C.M. A. No. 9 of 1991 on the file of the Sub Court, Karur. It is stated to be posted on 26-11-1991.

After the delivery was recorded, the respondent filed an application for stay of execution proceedings. But, that application was dismissed as

delivery had been affected already. The respondent filed E. A. No. 165 of 1991 for setting aside the order dated 7-1-1991 passed by the

executing Court. Several grounds are urged by the respondent. But, the executing Court accepted one of the grounds, viz., the delivery of

possession was ordered by the Executing Court without notice to the respondent and, therefore, it was not proper and it was not in accordance

with a Circular issued by this Court in R.O.C. No. 195/76 Con. RR2 dated 22-11-1977.

Under Order 21, Rule 22 of the Code of Civil Procedure, the Executing Court shall issue a notice to the person against whom execution is

applied only if the execution petition is made more than two years after the date of the decree or it is made against the legal representative of a

party to the decree or it is made against the assignee or Receiver in insolvency. If the execution petition is filed within two years after the date of the

decree, there is no necessity for the executing Court to issue notice to the judgment-debtor. How ever, this Court has, it appears as a matter of

practice, issued circular to the Subordinate Courts that execution shall not be granted without notice to the judgment-debtors. But, the relevant

portion of the circular reads as follows:

Of course, the said provisions enable the executing court to pass an ex parte order if the application has been made within the period specified

therein. But, it is prudent that in respect of applications filed under Order 21, Rule 22 of the CPC in the case of ex parte decree (though the rule

does not make a distinction between execution of decree passed on contest or ex parte decree) the Court should not ordinarily pass an order

without issuing notice to the other side.

The language used in the Circular is rather significant. The Subordinate Courts are not prevented altogether from ordering execution without notice.

As a rule of prudence, the Subordinate Courts are directed that they should not ordinarily pass an order without issuing notice to the other side.

If in a particular case the Subordinate Court has not obeyed the Circular issued by this Court, that will not invalidate the order of the court as it

is a judicial order if it is in accordance with the provisions of the Code of Civil Procedure. The disobedience of the Circular issued by this Court

may lead to appropriate proceedings against the concerned official. But, that will not in any event nullify or vitiate the judicial order passed by the

Court when it is in conformity with the provisions of the CPC and other provisions of law. So long as there is no rule made by this Court under the

first schedule of the CPC and so long as there is no amendment to the provisions of Order 21, Rule 22 of the Code of Civil Procedure, an

administrative circular will not have precedence over the existing rule.

Consequently, the order dated 7-1-1991 recording delivery is directly in accordance with law as the order granting execution without notice to

the judgment-debtor was in accordance with the provisions of Order 21 , Rule 22 of the Code of Civil Procedure. Hence, that order cannot be set

aside on the ground that the circular issued by this Court had not been followed or complied with.

On the facts of this case, it is seen that the respondent was very much aware of the ex parte decree and he had filed an application on 31-7-

1990 itself to set aside the same. He ought to have applied for stay of execution of the decree if he was interested in getting an order of stay. Not

having done so, the respondent cannot blame the executing Court for directing delivery of possession without notice to him. On the facts of this

case, failure of the executing Court to issue notice to the judgment-debtor is not really a violation of the circular of this Court.

Even otherwise, for setting aside a judicial order, there should be an application known to law. The procedure prescribed by the law should be

followed. There is no application before the court to review the order dated 7-1-1991. The application filed on 6-2-1991 is to set aside the order

dated 7-1-1991. Unless there is an application as prescribed by the Code of Civil Procedure, the order passed on 7-1-1991 could not have been

set aside by the Court below. Hence, the order which is under revision is unsustainable. Hence, the civil revision petition is allowed and the order in

E.A. No. 165 of 1991 dated 3-5-1991 is set aside. The order dated 7-1-1991 recording delivery of possession is restored. There will be no

order as to costs.

Revision allowed.