Jharkhand High Court
Bajranghlal Singhania vs Ratan Chandra Ghosh And Ors. on 10 December, 2002
Equivalent citations: [2003(1)JCR599(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
Heard the Parties.
1. This revision application is directed against the order dated 28.9.2002 passed by Munsif at Jamshedpur in Execution Case No, 23/98 whereby he has held that before passing order for issuance of writ of delivery of possession, notice to show cause against one of the Judgment debtors is mandatary in view of provisions of Order XXI, Rule 22(1)(a) of the C.P.C.
2. The facts of the case lies in a narrow compass.
3. Petitioner filed Eviction Suit No. 124/92 for eviction of the defendants/ opposite parties on the ground of personal necessity. The suit was decreed in terms of judgment dated 31.8.98. The decree holder opposite parties levied Execution Case No. 23/98 for execution of the decree. In the meantime, opposite parties preferred civil revision being C.R. No. 519/98R before this Court challenging the judgment and decree passed by the Munsif. The Civil Revision was dismissed on 10.8.2001. The opposite parties then filed S.L.P. No. 7049/2002 which was also dismissed on 22.3.2002. While dismissing the appeal the Supreme Court observed that if appellants file undertaking to vacate the premises then the decree shall not be executed for six months. The opposite parties did not file any undertaking which was confirmed by the Supreme Court through the letter of Assistant Registrar dated 29.4.2002. After expiry of six months the petitioner decree holder filed an application before the munsif for issuance of writ for delivery of possession. On the said application impugned order has been passed.
4. It was not been disputed by the counsel appearing for the opposite parties that after dismissal of the Special Leave Petition, the judgment debtor/opposite parties appeared in the execution case and prayed for stay of the execution proceeding for one month for swearing required affidavit in the said Special Leave Petition.
5. On consideration of these facts, it is clear that Munsif has not correctly interpreted Order XXI, Rule 22 of the C.P.C. Admittedly the execution case was levied within two years from the date of the decree. Some of the judgment debtors appeared in execution case and it is only when decree holder filed application for effecting delivery of possession the judgment debtors opposite parties filed application stating that their mother who is one of the Judgment debtors has not been noticed. The Court below on the statement of the judgment debtors passed the impugned order.
6. Order XXI, Rule 22 of the C.P.C. which prescribes the issuance of notice to show cause reads as under :
"Notice to show cause against execution in certain cases.--(1) Where 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 filed under the provision 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 the execution of a decree without issuing the notice thereby prescribed, if, for reason to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."
7 From bare reading of the aforesaid provisions, it is clear that when an application for execution is made more than two years from the date of the decree or against the legal representative of party to the decree or against the assignee or receiver then before executing the decree the Court shall issues notice to the person against whom execution is applied for requiring him to show cause as to why decree should not be executed. The expression "application for execution" used in the said rule refers to the application filed for execution of a decree as contemplated under Order XXI, Rule 11(2) of the C.P.C. The Court below has completely misdirected himself in law in holding that before issuing writ of delivery of possession notice to the non appearing judgment debtors in necessary.
8. Besides the above, the Court below however, failed to consider Sub-rule (2) of Rule 22 of the Code which empowers the Court to execute the decree without issuing notice if this Court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
9. In the instant case, as noticed above, against the judgment and decree passed by the Court below defendants/opposite parties filed civil revision which was dismissed and then they moved the Supreme Court in S.L.P. No. 7049/2002 which was also dismissed. Not only that the opposite parties failed to give undertaking before the Supreme Court although they filed application in the execution proceeding seeking a month time for filing undertaking before the Supreme Court, Not only that the judgment debtors/opposite party Nos. 1 and 3 who are the sons appeared in the execution case at all stage of the proceeding. In that view of the matter the Court below committed serious error of law in passing impugned order for service of notice instead of issuing writ of delivery of possession. The impugned order therefore can not be sustained in law.
10. For the aforesaid order passed by the Court below is set aside. It is directed that the executing Court shall execute the decree forthwith.