Finding of Magistrate in such cases is a must.

Srinivasan, J.

1. This civil revision petition is directed against the dismissal of an application under Section 47, C.P.C. filed by the petitioner herein for a declaration that the proceedings in E.P. No. 271 of 1987 are invalid and for dismissal of E.P. No. 271 of 1987.

2. The short facts which are relevant for the purpose of this revision petition are as follows:

The respondent obtained a decree for declaration of his title and for an injunction restraining the petitioner from interfering with his possession. The decree was passed on 20.6.1986. The respondent filed E.P. No. 271 of 1987 under Order 21, Rule 10, C.P.C. for execution. In the relief column, he prayed for an order under Order 21, Rule 32, C.P.C. for arrest of the petitioner herein for having disobeyed the decree and also for attachment of the properties of the petitioner and sale of the same. It is stated in the execution petition that the respondent had incurred a loss of Rs.20,000 on account of the petitioner's disobedience of the decree. No doubt, the portion relating to the claim of Rs. 20,000 was inserted in the execution petition, but there is nothing on record to show that it was done after the execution petition was presented in Court. In all probability, it was done even when the execution petition was filed in Court.

3. The petition was presented on 1.4.1987. Notice was ordered to the petitioner, returnable on 29.4.1987. It was served on the petitioner and he entered appearance through his council on 29.4.1987. He was granted time to file a counter till 22.6 1987. The matter was called on 22.6.1987 and reposted to 8.7.1987 as the Judge was on casual leave. On 8.7.1987 the petitioner has filed his counter, which actually bears the date 24.6.1987. In the counter affidavit, the petitioner referred to the pendency of an application to set aside the ex-parte decree and contended that the execution petition was not maintainable. The petitioner herein did not make any specific reference to the claim of the decree-holder, the respondent herein, that the petitioner had wilfully disobeyed the decree. The explanation given by the learned Counsel for the petitioner herein is that the notice served in the Execution Petition merely referred to the claim of the decree-holder for costs granted in the decree in a sum of Rs. 169 and odd and from the notice the petitioner could not know that there was a prayer under Order 21, Rule 32, C.P.C. Assuming that the same is true, such a plea is not available to the petitioner as he had entered appearance through his counsel and the counsel ought to have looked into the execution petition and found out the exact position. The counter statement or counter affidavit should have been filed only after the verification of the execution petition by the counsel.

4. The matter was actually taken up for disposal on 22.10.1987. On that day, the petitioner herein was absent and set ex parte. The Executing Court passed an order of attachment straightway without giving any finding as to whether the petitioner was guilty of disobedience of the decree. The order passed on 22.10.1987 reads as follows:

The respondent called absent. Set ex parte. Attach by 17.11.1987.

5. Pursuant to that order, the immovable properties of the petitioner herein were attached and the petitioner has produced the attachment notice. That notice refers only to the claim for a sum of Rs. 169.25. Nobody can say from the attachment notice that it was made in an application under Order 21, Rule 32, C.P.C.

6. The petitioner did not however take any steps to have the attachment raised. The execution petition was continued and the decree-holder was directed to file sale papers. Ultimately, he filed sale papers and the sale was held on 2.5.1990.

7. In the meanwhile, the petitioner filed an application under Section 47, C.P.C. on 12.2.1990. That application was contested by the respondent herein. The Court passed an order on 22.3.1990 dismissing the application. The reasoning of th