S. Pakkiaraj vs S.N. Kulasekaran

Pratap Singh, J.—This revision petition is directed against the order directing delivery of possession of the suit property without giving notice

to the petitioner/judgment-debtor.

The short facts are: Respondent has filed the suit in O.S. No. 1311 of 1981 on the file of District Munsif''s Court, Poonamallee, for declaration,

possession and permanent injunction. After an elaborate trial, the learned District Munsif has decreed the suit on 29.12.1988. Aggrieved by the

same, the petitioner has filed an appeal and the same was dismissed on 21.9.1989. Thereafter, the respondent has filed E.P. No. 181 of 1991 in

the trial court and delivery was Ordered on 5.8.1991 without notice to the petitioner. Aggrieved by the said order, the petitioner has preferred this

revision petition.

The learned Counsel for the revision petitioner, would submit that under the provisions of Order 21, Rule 22, C.P.C., notice has to be given to

the petitioner and that the order of delivery without notice is clearly untenable. Learned Counsel relied on the decisions in Gauri Lal and Others Vs.

Smt. Sujham Devi, ; Muthammal Vs. Kaveriammal and Others, ; Kamalammal Vs. M. Kanthamma, and Rajagopala Iyer v. Ramanujachariar, ILR

47 Mad. 288.

Per contra, learned Counsel for the respondent, would submit that when the appeal was filed and was dismissed, the date of judgment of the

appellate court alone should be taken into account and the appeal having been dismissed on 21.9.1989 and the order in the execution petition

having been passed on 5.8.1991 which is within two years, notice is not required and the order is perfectly in order.

I have carefully considered the submissions made by rival counsels. The entire question falls within a short compass viz. whether the date of

decree of the trial court alone is to be taken into account for computing the two year period contemplated in Order 21, Rule 22, C.P.C. or

whether the date of judgment of the appellate court is the date which is to be taken into account. For the purpose of convenience, I extract the

relevant portion of Order 21, Rule 22, C.P.C, which reads as follows:

(1) Notice to show cause against execution in certain cases-Where an application for execution is made:

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

(b)...

(c)...

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 or execution....

To construe the Clause (a) which puts the date of two years after the date of decree, necessarily we have to see what is the ""decree"". ""Decree"" is

defined in Section 2(2), C.P.C., and it reads as follows:

(2) ""decree"" means the formal expression of an adjudication which, so far as regard''s the court expressing it, conclusively determines the rights of

the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question within Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from art order, or

(b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be

completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

In Kunjammal Vs. Krishna Chettiar by agent, Velayudham Pillai, , a Division Bench of this Court has laid as follows:

The law is well settled that when a decree is taken in appeal to a higher court, the decree passed in appeal supersedes that Of the court below and

becomes a decree in the suit itself and that thereafter that is the only decree which is capable of execution and the period of limitation for execution

would run from the date of that decree.

This ruling of the Division Bench was followed subsequently by Justice Balasubrahmanyan in S.K. Yesudasan Vs. A. Grant, .

In Gauri Lal and Others Vs. Smt. Sujham Devi, t was held that in cases where an application for execution is made more than two years after

the date of decree, no process in execution can issue unless a notice to show cause is served on the judgment-debtor or the service of such notice

is dispensed with in accordance with law. It was further held that where a decree for possession was passed and decree-holder filed execution

proceedings nearly six years later from date on which decree was passed and executing court without issuing a show cause notice to the judgment-

debtor issued a warrant for possession, the executing court could not be regarded to have assumed jurisdiction legally and validly in issuing the

war- rant for possession without a show cause notice having been first served upon the judgment-debtors. In Kamalammal Vs. M. Kanthamma, ,

it was held that in computing the period of limitation prescribed for executing the mortgage decree, the time during which the injunction was thus

presumed to be in force is liable to be deducted. In Muthammal v. Kaveriammal AIR 1987 Mad. 103, it was held that where after the dismissal of

the first execution petition filed beyond a period of two years from the date of the decree by the second appellate court, a second execution

petition was filed on the same day, a notice to the judgment-debtor under Order 21, Rule 22 would be necessary and the proviso to Order 21,

Rule 22 would not be attracted in such a case because the dismissal of the first execution petition could not be said to be an order against the

judgment-debtor, rather the dismissal of the execution petition would be in favour of the judgment-debtor. In Rajagopala Iyer v. Ramanujachariar

ILR 47 Mad. 288, it was held that execution of sale without notice to the judgment-debtor is a nullity.

From the above rulings, the following principles can be deduced:

(i) In an execution petition, if notice is required under the provisions of Order 21, Rule 22, C.P.C., and if notice was not issued but execution was

proceeded with, the executing court could not be regarded to have assumed jurisdiction legally and validly without a show-cause notice having

been first served upon the judgment-debtor.

(ii) When a decree is taken in appeal to a higher court, the decree passed in appeal supersedes that of the court below and becomes the decree in

the suit itself and the period of limitation for execution would run from the date of that decree of the appellate court.

Applying the above principles to the facts of the case before me, the date of judgment of the appellate court viz. 21.9.1989 alone is to be taken

into account for the purpose of computing the period of two years for the purpose of Order 21, Rule 22, C.P.C. If so taken, the execution

petition, having been ordered on 5.8.1991, which is within a period of two years from 21.9.1989 is well within time and is in order.

Mr. R. Sankarasubbu''s further submission is that after the passing of new Limitation Act, the period of two years is to be considered only from

the date of the trial court decree and not the decree of the appellate court. I do not find any support to this submission in the provisions of the

Limitation Act. The crucial word which is to be interpreted for the purpose of Order 21, Rule 22, C.P.C., is the ""decree"". Regarding the

interpretation of the ""decree"" the definition of ""decree"" and the rulings referred to supra and the principle (ii) which I have deduced above would

show that only the date of appeal decree is to be construed as the date of the ""decree"". Hence, neither this submission would hold good.

In view of the above, this civil revision petition has to be necessarily dismissed and shall stand dismissed.