Madras High Court
Feroz Khan vs S.M.S.S.A. Farook Ali on 17 July, 2000
Equivalent citations: 2000(3)CTC115
ORDER 1. The respondent has filed in R.C.O.P.No.2802 of 1996 on the file of the Small Causes Court, Chennai for evicting the petitioner. The learned Rent Controller in his order dated 24. 1.2000 allowed the petition for eviction and granted two months time to the petitioner/tenant to vacate the premises. After expiry of the period of two months, the respondent has filed the Execution Petition on 27.3.2000. Since the respondent has not produced the certified copy of the decretal order, the office returned the papers and ultimately on representation by the counsel in open Court, the Court on 6.4.2000 directed the office to number the same. On 7.4. 2000 notice was ordered and on 26.4.2000, the Execution Petition was ordered and possession has been taken. At this stage, the petitioner has filed the above revision under Article 227 of the Constitution of India on the ground that the Execution Petition cannot be sustained, without enclosing the decree copy, and that without even proper notice, the execution has been effected. 2. The learned counsel appearing for the petition has submitted that the petitioner is having a right of appeal against the order of the learned Rent Control and he has applied for certified copy of the order an decree. Without even furnishing the certified copy of the order and decree, the executing Court should not have allowed the respondent/landlord to proceed with the execution, that too without furnishing the copy of the decree which is required under law. He has relied on the endorsement made by the office while returning the papers asking the petitioner to produce the copy of the decree. On that basis, the learned counsel has relied on Order 21, Rule 11 (3) of the Code of Civil Procedure to submit that when the Court requires the applicant to produce the certified copy of the decree, it should not have proceeded further without even obtaining the same from the landlord. In this case, no doubt, the office has returned the papers and asked the landlord to produce the certified copy of the decree. The learned counsel appearing for the respondent/landlord has made an endorsement to the effect that "decree is not necessary' for filing of Execution Petition as per Order 21, Rule 11 (2) of the Code, and also in view of the decision in W.B. Essential Commodities Supply Corporation v. Swadesh Agro arming and Storage Pvt., Ltd. and another, , In case of Doubt post before Court. On the basis of this endorsement the case was posted before the Court and in the open court after hearing the learned counsel for the landlord, the learned Judge accepted the submissions and directed the office to number it without decree copy, So, the submission of the learned counsel for the petitioner that when the Court has directed the land-lord to file the Execution Petition with the decree copy, the Court should have proceeded with the Execu-tion Petition without furnishing such copy cannot be sustained. 3. Now, the question is whether such a decree copy is necessary at all to proceed with the Execution Petition. 4. The Code compels to produce the certified copy of the decree along with the Execution Application, only if the Court to which the application is made asked the applicant to produce the same; other-wise it is not a necessary document. Under Order 21, Rule 11 (3) it is stated so, and so it is extracted as follows:- "The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree". 5. In this case, according to the learned counsel for the petitioner, though the office has asked the petitioner to produce the certified copy of the decree it amounts to an order from the Court to produce the same and so the respondent-decree holder has to comply with the requirement under Order 21, Rule 11 (3) of the Code strictly. -In this case, though the office has originally asked the decree-holder to produce the certified copy of the decree, the learned counsel appearing for the decree-holder has made an endorsement that it is not necessary. So the said case was called in open Court and after hearing the submission of the learned counsel for the decree-holder, the lower Court has felt that production of such a decree is not necessary. So it cannot be said that the decree-holder has to comply with the requirement under Order 21, Rule 11 (3) of the Code as if the lower Court has asked the decree-holder to produce the same. 6. Moreover, it is well settled that production of certified copy of decree, is not necessary, in the Execution Petition. This view of mine is supported by a number of decisions. In the decision in Jagdeo Sao v. Basudeo Narain, A.I.R. 1954 Pat. 92, the Division Bench while dealing with the scope of Order 21, Rule 11, has held as follows:- "(9) Order 21, Rr.10 to 14 and 17 are some of the relevant rules dealing with the filing of an application for execution. Order 21, R.10, Civil P.C. empowers the decree-holder to apply for execution to the court which passed the decree. The word 'decree-holder' has been defined in 3.2 (3), Civil P.C. The definition runs thus:- --'decree-holder' means any person in whose favour a decree has been passed or an order capable of execution has been made:' It is admitted on all hands that a decree bears the date of the judgment. On the wording of the order portion of the judgment of the present case, therefore, the present decree- holders were no doubt decree-holders on the date they filed the petition for execution. The decree may be signed sometimes later, but the right of the decree-holder under the decree commences from the date of the judgment which is the date of the decree. In my opinion, therefore, the plaintiffs-respondents had every right to file an application for delivery of possession on 28.11.1951. Order 21, R.11 (2), Civil P. C. provides the form in which an. application for execution has to be filed. Column 3 requires only the date of the decree to be given. This can be supplied from the date of the judgment which is the dale of the decree. Order 21, R. 11 (3), Civil P.C. runs thus: 'The Court to which an application is made under sub- r.(2) may require the applicant to produce a certified copy of the decree'. Order 21, R.ll, Civil P.C. therefore, does not make it obligatory for the decree-holder to file a copy of the decree along with the petition of execution. Order 21, Rr.12, 13 and 14 also do not require a copy of the decree to be filed along with execution petition. Order 21, R.17 (1) as amended by this Court runs thus: On receiving an application for the execution of a decree as provided by R.11, sub-r.(2), the Court, shall ascertain whether such . of the requirements of Rr.11 to 14 as may be applicable to the case have been complied with and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it, and if the decree-holder fails to remedy the defect within such time the Court may reject the application'-". 7. Even in the decision in Mannalal v. Bhalchandrao, AIR 1960 MR 41, while dealing with similar issue, the learned Judge, relying on the decision of the Division Bench of the Patna High Court in Jagdeo Sao v. Basudeo Narain, AIR 1954 Pat. 92, has held as as follows:- "As under 0.21, R, 11 (3), C.P.C. a copy of the decree is not ordinarily necessary for execution, it cannot be argued that a copy of the decree of the appellate Court should have been filed in the pending execution proceedings within three years of its date. In my judgment, the Courts below were right in permitting the decree-holder to amend the petition after passing of the appellate Court's decree and treating the amended petition for execution, as one within time for the execution of the appellate Court's decree". 8. Again, the Division Bench of the Patna High Court, in the decision in Chandra Mouli v. K.B.N.Singh, AIR 1976 Pat. 208, has held as follows:- "8. Next question that arises for consideration is as to whether the decree could be executed without the signing and sealing of the decree in a formal way. The answer to this question is given under Rule 11 of Order 21 of the Code of Civil Procedure. According to sub-rule (1) of Rule 11, where the decree is for payment of money, on an oral prayer made by the decree- holder, the court may order immediate execution of the decree by the arrest of the judgment-debtor prior to the pre-paration of a warrant if he is within the precincts of the Court. This sub-rule leads to the inference that action can be taken prior to the preparation of the decree under Order 20, Rule 6 of the Code of Civil Procedure. Again sub-rule (2) of the Rule provides that every application for execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case and shall contain in a tabular form specified particulars. It is not necessary under this sub-rule to file certified copy of the decree. The court may, without the certified copy of the decree, proceed with execution. It is only under sub-rule (3) that the court may require, the applicant to produce a certified copy of the decree, Unless an order is made under sub-rule (3) calling upon the applicant to produce certified copy of the decree, the execution has to proceed on the basis of an application filed under sub-rule (2). In and in the case of Lal Baijnath Prasad v. Nursingdas Guzrati, , it has been held that the time taken in preparation of the decree cannot be excluded for the purpose of limitation", 9. The Allahabad High Court also has taken similar view in the decision in Farukh v. District Judge Lucknow, , and held as follows:- "13. Learned counsel for the petitioners has, however, further contended that the decree-holder had also failed to produce before the execution Court a certified copy of the decree passed by the High Court in second appeal. The opposite party contends that it did file a copy of the decree of the High Court. While the petitioner disputes this, the factual position in this regard cannot be ascertained because of the loss of the record. However that may be, the fact remains that a copy of the order of the High Court was produced before the execution court as noted in Annexure 2.A. Copy of the order means either a copy of the judgment or a copy of the decree. It is not obligatory to file a copy of the decree. 0.22 R.11 (3) lays down that the execution Court may require the applicant to produce a certified copy of the decree. This implies that it is not obligatory on the decree- holder to produce a certified copy of the decree sought to be executed until he or she is so required. Thus, nothing turns on the alleged non-production of a certified copy of the High Court decree by the decree-holder". 10. Ultimately, the Apex Court in the recent decision in W.B.E.C.S.C. v. S.A.F. & S.Pvt. Ltd. another, confirming the views of the above said decisions, has held as follows :- "19. The decree-holder could have enforced the money decree immediately on the pronouncement of the judgment by making an oral application under sub-rule (1) of Rule 11 of Order 21 C.P.C. For filing an application under sub-rule (2) of Rule 11, C.P.C., a copy of the decree need not be enclosed. What all sub- rule (3) of the said Rule says is that the Court may require the applicant under sub-rule (2) to produce a certified copy of the decree. On being required to do so, it could have produced the last portion of the judgment which has the effect of the decree under Rule 6A of Order 20 C.P.C. It is not a case where the appellant lost the period of limitation because of any act of the Court but it is a case where the appellant failed to apply for execution of the decree for reasons best known to it and now seeks to take advantage of the fact that the Court took time for drawing up and signing the decree. In our view, the delay in drawing up and signing the decree did not cause any prejudice to him. There is no nexus between the late drawing up of decree by the Court and the filing of the execution petition by the appellant after the expiry of the limitation". 11. In view of the abovesaid decisions, it is very clear that in normal course, production of certified copy of the decree to execute the decree is not necessary. Only if the Court directs as stipulated under Order 21, Rule 11 (3) of the Code, the decree-holder is bound to produce the same. So, the submission of the learned counsel for the petitioner cannot be sustained. 12. The learned counsel for the petitioner relying on Rule 140 of the Civil Rules of Practice, has submitted that production of certified copy of decree is necessary. The Civil Rules of Practice is only directory and it cannot override the Code. Rule 140 of the Civil Rules of Practice runs as follows:- "140, Certified copy of decree to be filed:-The judgment- creditor shall together with the first petition for execution or transmission of a decree file in court a certified copy of the decree sought to be executed and shall not be required upon any subsequent application, file a further copy of the same decree, unless the copy already filed has been sent to another court under rule 6 of Order 21 of the Code and has not been returned and application is made to the court which passed the decree for concurrent execution". Viswanatha Sastri, J., in the decision in Arunachala Reddiar v. Muthusadasiva Mudaliar, 1949 (II) M.L.J. 617, while giving his own reasoning in support of the conclusion of the Division Bench, has dealt with the issue and held as follows:- "Rule 142 of the Civil Rules of Practice is a mere re- numbering of the old rule 164 framed under the Civil Procedure Code of 1882. It is material to point out that rule 142 has not been made or promulgated in accordance with the procedure prescribed by Pan X of the Civil Procedure Code of 1908, The question that arises is, how far the provisions of the Civil Procedure Code of 1908 override or are overridden by the Civil Rules of Practice framed under the Civil Procedure Code of 1882. Section 157 of the Civil Procedure Code furnishes the answer and provides that rules made under the Civil Procedure Code of 1882 shall, so far as they are consistent with the Code of 1908, have the same force and effect as if they had been made under the new Code. The necessary corollary is that if the Civil Rules of Practice framed under the old Code are, to any extent, inconsistent with the provisions of the Civil Procedure Code of 1908, they pro tanto cease to have operation after the coming into force of the Civil Procedure Code of 1908. Order 21, rule 11 is part of the Civil Procedure Code of 1908 and in so far as Rule 142 of the Civil Rules of Practice is inconsistent with it, the latter must stand abrogated. This is the decision of the Full Bench of this Court in Bademian Saheb v. Jankan Saheb, 1938 (1) M.L.J. 495: I.L.R. 1938. Mad. 734 (F.B.), a case evidently not brought to the notice of Somasundaram, J.
The next question is whether Rule 142 of the Civil Rules of Practice is inconsistent with or repugnant to Order 21, rule 11 of the Civil Procedure Code of 1908. Order; 21, Rule 11, clause (2) lays down with minute particularity the formalities required for a valid execution application. In the reported decisions some of these requirements have been considered to be of a mandatory character and non-compliance with them has been held to render the application one not in accordance with law. Among the formalities so enumerated in Order 21, Rule 11, clause (2) as essential for an execution application, the production of a certified copy of the decree sought to be executed is not one. Further, sub-clause (3) of rule provides that 'The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree'.
The necessary implication is that the production of the certified copy of the decree sought to be executed as an annexure to the first execution application is not necessary and a certified copy need be furnished only if and when the Court require the applicant to produce it. Rule 142 in so far as it requires an applicant who first applies to execute his decree to produce along with the application a certified copy of the dec in my opinion, inconsistent with Order 21, Rule 11 sub-rules (2) and (3) and the two provisions cannot stand together. By virtue of section 157 of the Civil Procedure Code of 1908, Rule 142 of the Civil Rules of Practice must give way and Order Rule 11, sub- rules (2) and (3) alone must govern the decision of this question. On this part of the case, therefore, I regret I am unable to agree with the opinion of Somasundaham, J.
Even when the Civil Procedure Code of 1882 was operation and rule 164 of the Civil Rules of Practice (corresponding to rule 142) framed under that Code was in full force, it was held by a Division Bench of this Court in Pachiappa Achari v. Poojali Seenan, 1905 I.L.R. (28) Mad. 557, that the provisions of rule 164 of the Civil Rules of Practice (now rule 142) were merely directory and that non-compliance with them did not render an application for execution one not in accordance with law. Reliance was placed by me learned Judges on the analogous provisions of section 610 of the Civil Procedure Code of 1877 corresponding to Order 45, rule 15 of the present Civil Procedure Code, providing for the transmission of decrees of the Judicial Committee for execution by Subordinate Courts and requiring a copy of the decree sought to be executed to be filed along with the application for transmission. In Hurrish Chunder Chowdry v. Kali Sundari Debia, 1882-1883 L. 10 I.A. 4 at pp15, 16: I.L.R. 9 Cal.482 (P. the Judicial Committee observed that the requirement of section 610, Civil Procedure Code, 1877, was merely of a directory nature intended to supply proper information about the Order in Council, Their Lordships in Paciappa Achari v. Poojali Seenan, 1905 I.L.R. 28 Mad. 557, placed reliance on this decision of the Privy Council and came to the conclusion that the provisions of rule 164 (now rule 142) of the Civil Rules of Practice were merely directory and that the omission to file a certified copy of the decree sought to be executed along with the first execution application did not detract from its validity. Somasundaram, J., distinguished the case in Pachiappa Achari v. Poojali Seenan, 1905 I.L.R. 28 Mad. 557, on the ground that rule 164 (now rule 142) of the Civil Rules of Practice had not the force of law under the Code of 1882 while it has acquired such force by reason of the enactment of sections 121, 122 and 127 of the Civil Procedure Code of 1908. With all respect there is no warrant for this assumption which is a subversion of the true position. Section 652 of the Civil Procedure Code of 1882 gave the rules made under that Code statutory force as if enacted in the body of the Code itself and rule 164 (now 142) of the Civil Rules of Practice had the force of law when Pachiappa Achari v. Poojali Seenan, 1905 I.L.R. 28 Mad. 557, was decided. Indeed, the position is that rule 142 of the Civil Rules of Practice (old rule 164) was legally operative at the time when Pachiappa Achari v. Poojali Seenan, 1905 I.L.R. 28 Mad .557, was decided and has now ceased to be such by reason of its repugnance to Order 2, rule 11, sub-rules (2) and (3) of the Civil Procedure Code of 1908. The distinction between a mandatory and a directory provision is not always easy to draw and Pachiappa Achari v. Poojali Seevan, 1905 I.L.R. 28 Mad. 557, having held that the requirement as to the production of a certified copy of the decree was of a directory nature, might well have been allowed to stand on the principle of stare decisis especially as the matter is one relating to procedure",
13. The next submission of the learned counsel for petitioner is that in the Execution Petition, though the decree- holder has given the address of the tenant as "Rangoon Hardware Mart, 5/79 & 5/79A, Sembudoss Street, Chennai-600 001", it has been subsequently altered as "26, (New No.53), Post Office Street, Chennai-600001 for which building the eviction petition was filed. On that basis the learned counsel has further submitted that though the petitioner herein is having only a godown there, and is not having office there the address has been changed only with the intention not to serve the notice properly. This submission also cannot be sustained, in view of the following two reasons. First is, no notice is necessary; because the execution petition was filed within two years from the date of the order. Second is, no address need be given by the decree- holder in the Execution Petition As per Order 21, Rule .22 of the Code, where an application for execution is made more than two years after the date of the decree, the Court executing the decree shall issue a notice to a 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. From the abovesaid specific provision, it is clear that if the Execution Petition is made within two years, no such notice is necessary. This view is supported by the decision of Srinivasan, J., as he then was, in Nachayee Ammal v. Pichalmuthu, , wherein it has been head as follows :-
"4. 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 of 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. However, 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 a 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 Code of Civil Procedure 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".
Merely because notice was ordered by the Court and it was sought to be served on the petitioner to the given address, it cannot be said that the proceedings taken are erroneous. In view of the findings of the learned Rent Controller that the petitioner therein is carrying on the business in the said place, now the petitioner herein cannot come forward with the plea that the not should not have been sent to the said address.
14. Even with respect to the argument of the learned counsel for the petitioner regarding the alteration of the address, I am not able to accept the same. Order 21, Rule 11 (2) specifically states that in the Execution Petition the decree- holder has an obligation to give only the name of the parties, and he has no obligation to give the address. This issue also has been dealt with by the Nagpur Bench, in the decision in Nathmal v. Balkrishna, AIR 1941 Nag. 152, and held as follows:
"First of all as regards the address of the judgment-debtor all that 0.21, R.11 (2) (b) requires is that the names of the parties should be specified in the application. It says nothing about the addresses. If this is compared 0.7, R.1 dealing with the particulars require' in a plaint it will be seen that in the case a plaint not only is the name of the defendant necessary but also his place of residence. There fore, if a decree-holder complies precisely with the terms of 0.21, R.ll, it is impossible to say that his application is not in accordance with law, especially when the Code itself draw the distinction to which I have referred between plaints and applications for execution. It may be that in a given case the particulars required by the Code would be insufficient but in that case it is always open either for the Court or for the other side to ask for further and better particulars. The point is that an application which compile; strictly with the terms of 0.21, R.ll cannot be said to be not in accordance with law".
So, it cannot be said that by mere alteration in the address, the petitioner is prejudiced. When there is no statutory obligation on the part of the decree-holder to furnish address, then the mere alteration of the address of the petitioner for which eviction petition is filed, cannot be a ground to come to the conclusion that the Execution proceedings have been taken illegally.
15. It has also been brought to my notice that the petitioner herein has already filed petitions before the executing Court in M.P.Nos.438 and 439 of 2000 in E.A.No.472 of 2000 for the same relief as sought for in this Revision. So, the petitioner cannot be allowed to agitate the same before this Court.
16. For the foregoing reasons, I do not find any merits in this Revision. Accordingly, the same is dismissed. No costs. Consequently, C.M.P.No.7697 of 2000 is also dismissed.