Prem Nath Anand Buildcon Pvt. Ltd. and Another vs Poonam Sharma

M.L. Mehta, J.—This petition under Article 227 of the Constitution of India seeks assailing of order dated 01.03.2012 of the learned Additional District Judge, Tis Hazari District Courts, Delhi in Execution No. 8 of 2012. The petitioners had filed a suit for recovery of possession, damages and mesne profits against the respondent Poonam Sharma and other. The said suit was decreed on 26.10.2004. Respondent Poonam Sharma preferred an appeal against the judgment before this Court vide RFA No. 74 of 2005. This appeal came to be dismissed by this Court on 11th January 2012. Thereafter the petitioners filed petition for execution of the decree before the concerned Court of ADJ vide Execution Petition No. 8 of 2012. Vide the impugned order the learned ADJ directed issue of notice to the J.D. Poonam Sharma by affixation at the conspicuous place of the property and also on the notice board of the Court. It is this order which has been assailed in the present petition.

The only ground pressed in assailing the said order is that learned ADJ erred in issuing of notice to the J.D. It was submitted by learned counsel for the petitioner that since the execution was filed within two years of the decision of this Court in appeal, no notice was required to be issued to the J.D. as per Order 21 Rule 22 CPC. The learned counsel also referred to certain judgments to urge that the appeal was in continuation of the suit and judgment and decree passed by the Trial Court merged with the order of the appellate Court and that being so, it was from the date of the decision in the appeal, that period of two years was to be reckoned.

There is no dispute with regard to the submission that the judgment and decree passed by the trial Court merged with the judgment passed by this Court on 11.01.2012. There is also no dispute that the execution petition was filed much prior to the period of two years and that no notice mandatorily was required to be issued to the JD as per Order 21 Rule 22 CPC. The question, however, is not that notice was not mandatorily required to be issued when the execution was filed within two years. On the other hand the question for consideration of this Court would be as if the executing Court had issued a notice in the interest of justice, was it against the provisions of Order 21 Rule 22 CPC. I do agree that if the execution petition was filed within two years of the decree or the decision of the appellate Court, no notice was mandatorily required to be issued to the J.D. However, Order 21 Rule 22 CPC does not preclude the Court to direct issue of notice to the J.D. in exercise of its discretion on the basis of the facts and circumstances of a particular case, even if the execution petition is filed within two years from the date of the decree or the decision of the appellate Court. In case where execution petition is filed within two years, it is open to the executing court, in exercise of its discretion to issue notice to the J.D. to meet the ends of justice. Similar view was taken by the Andhra Pradesh High Court in Vasant Rao Vs. E. Raja Reddy AIR 2003 NOC 600. In the present case the learned ADJ passed the impugned order after hearing arguments addressed by the learned counsel for the petitioner and has specifically recorded issue of notice to the JD in the manner as indicated above, in the interest of justice. I do not find any illegality or infirmity in the impugned order. The apprehension of the learned counsel for the petitioner that issue of notice will invite objections from the respondent is entirely misplaced and misconceived. The objections, if any, came to be filed by the JD, the petitioner would have its appropriate remedy as per law. There being no merit in the petition, it is hereby dismissed in limini.