Non-compliance with Order 21 Rule 34(2) CPC does not automatically invalidate the subsequent actions of the Executing Court, and serving notice under Order 21 Rule 22 CPC is not mandatory when the judgment-debtor has abandoned his claim and failed to participate in the execution proceedings.

Syamal Kanti Chakrabarti, J.

1. IN the present revisional application order no. 16 dated 23.03.2007, order no. 17 dated 04.04.2007 and order no. 12 dated 13.02.2003 passed by the learned Civil Judge (Junior Division), Amta in Title Execution Case No. 3 of 2001 have been assailed.

2. IT is contended on behalf of the petitioners that the aforesaid Title Execution Case No. 3 of 2001 was filed for executing a final decree dated 09.02.2001 relating to a preliminary decree dated 29.06.1990 passed in Title Suit No. 152 of 1986 passed by the learned Civil Judge (Junior Division), Amta. By such preliminary decree the learned Court below directed the defendant/judgement-debtor to execute a deed of reconveyance of the property mentioned in the preliminary decree in favour of the plaintiff at the cost of the plaintiff ignoring the provisions of Order 21 Rule 34 Sub-rule 2 CPC allowing the decree holder to have the draft sale deed executed through Court. Thus the judgement-debtor/ petitioner was denied the statutory opportunities available to him to raise objection against the contents of the sale deed which are wholly incorrect and misleading. Therefore, the said deed is invalid in the eye of law. It is further contended that while the disputed property was sold to one Dibakar Bhandari, judgement-debtor/ petitioner by Narendra Nath Manna, predecessor-in-interest of the plaintiff/ decree holder in 1974, the property was delivered in Khas to the petitioner and the judgement-debtor was in common enjoyment of the tank and in joint possession of the other property described in the schedule to the extent of 1/3rd share and the petitioner is still in possession and common enjoyment of the property delivered to him. The property sold comprises tank, agricultural land measuring .47 2/3 acre. It is further contended by the petitioner that at no point of time during and in course of the pendency of the said execution proceeding the copy of the sale deed was ever sent or served upon the judgement-debtor/ petitioner as per provision of Order 21 Rule 34(2) CPC which is mandatory. As a consequence all the orders passed by the learned Executing Court dated 04.04.2007 and 23.03.2007 are illegal and not maintainable in law and inconsistent with the provisions of Order 21 Rule 34 CPC. Therefore, he has prayed for setting aside those orders and the entire execution proceeding recording satisfaction of the decree in full and to set aside the sale deed executed and registered through Court in favour of the decree holder.

3. LEARNED lawyer for the opposite party on the contrary has refuted the argument and contended, inter alia, that sufficient opportunities were given to the petitioner to participate in the execution proceeding but from his conduct it will be reflected that he has relinquished his claim and subsequently did not participate in the proceeding. Therefore, the learned Executing Court had no other alternative but to proceed ex parte against him. Since opposite party intentionally has allowed the Court to proceed ex parte with full knowledge of the consequences, he cannot claim any benefit of equity or blame the Court for depriving him of the opportunity of being heard which is generally done following the principles of natural justice. Moreover, by executing and registering a deed the right, title and interest of the executor only are transferred in favour of the other party and by such transfer no better title or interest can be transferred either by the executor or by the Court which has executed the deed on behalf of the judgement-debtor who was supposed to execute the deed as per Court’s order. Therefore, the remedy of the aggrieved party for recovery of excess land by such sale deed lies in filing separate suit seeking for setting aside or modification of such title deed but no such remedy can be granted by reviving the execution proceeding which has been lawfully proceeded with and disposed of finally by the learned Executing Court.

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