Non-service of notice to show cause under Order 21, Rule 22 of the CPC does not affect the jurisdiction of the executing court to proceed with the execution of the decree if the judgment-debtor has constructive notice of the proceedings and appears in court to contest the same.

ORDER:- Non-service of notice to show cause against an application for execution filed more than 2 years after the date of decree is fatal and makes the entire proceeding void ab initio, contends the counsel for the petitioner and points to Order 21, Rule 22 of the Civil Procedure Code, for short "the Code". This is the sole contention in this revision under Section 115 of the Code.

2. The defendant-petitioner is the poser against whom the Opposite Party 1 instituted a suit for ejectment, arrear rent and compensation in mid-sixties. The subject matter is a tiny plot of land covering 2880 square feet. The suit was decreed in 1968, confirmed by the Ist appellate Court and ultimately upheld by this Court in 1970. It required about 6 years to draw the suit to a close. Then comes the execution part of the story. The plaintiff put the decree into execution in 1973 and it was dismissed for default whereupon the decree-holder filed a fresh application for execution which was registered as Title Execution Case No. 8 of 1977. Indeed, the application for execution was filed beyond the period of 2 years from the date of the decree and no notice to show cause was served on the decree-holder under Order 21, Rule 22 of "the Code". Notwithstanding absence of notice the petitioner of his own appeared in Court, submitted to its jurisdiction and lodged an application before it that he had no notice of the execution proceeding to which he was entitled under Order 21. Rule 22 of "the Code". Curiously enough the petitioner having had the knowledge of the execution proceedings and submitting himself to the jurisdiction of the Court took up the plea that the proceedings were liable to be quashed merely on the ground that no notice had been issued to him. However, the petitioner contended that the decretal property did not belong to him alone and as such the decree could not be executed. One Madan Sahu raised an objection under Order 21, Rule 58 of "the Code" that in the decretal land he had right, title and interest and as such the decree could not be executed. The learned Munsiff considered his application as well as that of the petitioner but turned down the contentions. The said Madan Sahu has not come before this Court. The learned Munsiff by a speaking order considered the pros and cons and held that the judgment-debtor had knowledge of the execution proceedings and failed to establish that he had suffered any injury or prejudice for want of notice.

3. AN APERCU: All the grievances of the petitioner were poured out to the learned Munsiff and the latter discerned them all and by a speaking judicial order rejected the pleas. The learned Munsiff held that the decree could be executed and dismissed the claim of Madan Sahu. Hence this revision.

4. Mr. G.K. Talukdar, learned counsel for the petitioner in support of the contention submits that the provision of Order 22, Rule 1(a) is mandatory and non-compliance thereof rendered the proceeding void ab initio as it affected the jurisdiction of the Executing Court to proceed on with the action.

5. To appreciate the depth of the argument it is necessary to quote the relevant provisions of Order 21, Rule 22 of "the Code" which runs thus ;-

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

(a) more than one year after the date of the decree, or,

(b) and (c) .............. ......

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 . . . . . . . . . . . . . . "

The Calcutta High Court amendments vide Notification No. 3516-G of 3-2-1933, added the following as sub-rule (3):

"(3) Omission to issue a notice in a case where notice is required under sub-rule (1) or to record reasons in a case where notice is dispensed with under sub-rule (2), shall not affect the jurisdiction of the court in e