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1996 Supreme(Ker) 247
Judges : J.B.KOSHY
Jaseentha Joseph - Appellant
Versus
Louis Neeklause - Respondent
Case No : CRP No. 269 of 1996
Decided On : 07/16/1996
Advocates Appeared :
B. Krishna Mani & V. Premchand For Petitioner P.G. Parameswara Panicker For Respondents
The absence of notice under 0.21 R.22 does not invalidate execution proceedings if no substantial injustice is caused, and objections raised by the parties are considered on merit.
Headnote:
Notice under 0.21 R.22 - Execution Proceedings - [PARTITION SUIT] - [0.21 R.22, S.97 of the Code of Civil Procedure (Amendment) Act 1976] - The court discussed the mandatory nature of notice under 0.21 R.22 and its applicability in execution proceedings against legal representatives. It considered various decisions including Rajagopala Aiyar v. Ramanujachariyar, Jharkhand M. & L Ltd. v. Nand Kishore, and Natarajan v. M/s. Chandmull Amarchand to interpret the legal provisions. The court also examined the enabling provision of R.22(2) and the proviso added by the Kerala amendment, concluding that the absence of notice under 0.21 R.22 did not invalidate the execution proceedings if no substantial injustice was caused. The court emphasized that the objections raised by the legal representatives were considered on merit, and the delivery order was not affected by the technical ground of the absence of notice under 0.21 R.22.
Fact of the Case:
The revision petitioner, as the 13th judgment debtor in a partition suit, challenged the order for delivery of the schedule property item No.1. The legal representatives of the deceased first judgment debtor objected to the execution petition, citing the absence of notice under 0.21 R.22 and other procedural irregularities.
Finding of the Court:
The court dismissed the Civil Revision Petition, emphasizing that the objections raised by the legal representatives were considered on merit, and the absence of notice under 0.21 R.22 did not invalidate the execution proceedings if no substantial injustice was caused. The court also found no defect in the present execution petition due to the non-mention of the previous execution petition number.
Issues: The issues revolved around the mandatory nature of notice under 0.21 R.22, the applicability of the provision in execution proceedings against legal representatives, and the procedural irregularities raised by the legal representatives.
Ratio Decidendi: The court held that the absence of notice under 0.21 R.22 did not invalidate the execution proceedings if no substantial injustice was caused. It emphasized that the objections raised by the legal representatives were considered on merit, and the delivery order was not affected by the technical ground of the absence of notice under 0.21 R.22.
Final Decision: The Civil Revision Petition was dismissed, with no order as to costs.
Koshy, J.
Revision petitioner is the 13th judgment debtor in O.S. No. 140 of 1978 on the file of the Principal Sub Court, Kollam. The decree holders filed E.P. No. 376 of 1994 on 16.2.1994 for delivery of the decree schedule item No. 1. The suit was a partition suit. The schedule property item No.1 belonged to the first decree holder. The shares allotted to the plaintiffs 2 and 3 were delivered on 31.7.1990. The first judgment debtor died. His legal representatives are additional judgment debtors 11 to 17. When the execution petition was filed, they filed objections stating that notice under 0.21 R.22 was not issued to the additional judgment debtors 11 to 17 who are the legal representatives of the first judgment debtors. It was also contended mat in the execution petition other judgment debtor were not parties. Earlier, E.P. No. 150 of 1989 was filed and the same was dismissed on 5.9.1991. Execution petition number was not mentioned in the application. It was further contended that the property now sought to be delivered is in possession of one Titus who claims to be the tenant of plaint schedule item No. 1. He is also not made a party. The above objections raised by the additional judgment debtors 11 to 17 were overruled and delivery of item No.1 of plaint schedule property was ordered. This order is challenged in this revision petition.
2. According to the revision petitioner, notice under 0.21 R.22 is mandatory. Since no notice was issued under 0.21 R.22 the execution petition will not lie. On that ground alone, the execution petition is liable to be dismissed. The other grounds, which were contested by filing objections, were also pressed. For understanding the nature of the contention, 0.21 R.22 is quoted below:
"22. 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, or where an application is made for execution of a decree filed under the provisions of S.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 of 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 execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice".
Based on the above section, it was argued that rule is mandatory and notice should " be issued when an application is filed two years after the date of decree. Here, the execution petition is made against the legal representatives of a party to the decree two years after the date of decree. For accepting the petition notice under 0.21R. 22 ought to have been issued. Based upon various decisions, it was argued that eventhough revision petitioners filed objections and they were parties to the execution petition in the absence of notice under 0.21 R.22 the entire proceedings are void.
3. In Rajagopala Aiyar v. Ramanujachariyar (AIR 1924 Madras 431) a Full Bench of the Madras High Court held that
