Back
2010 Supreme(Mad) 2298
High Court of Judicature at Madras
G. RAJASURIA
Aswinikumar Prop.Global Trading Chennai
Versus
K. Maheswari
C.R.P.(NPD) No.3309 of 2009
Decided On : 10-06-2010
For the Petitioner:Samir S. Shah, Advocate.
For the Respondent:A. Venugopal, Advocate.
The main legal point established in the judgment is the discretionary power of the executing court to order notice and proceed with delivery, as provided in Order 21 Rule 22 of CPC.
Headnote:
E.P. - Execution of Decree - Order 21 Rule 22 of CPC - Summary of Acts and Sections: Order 21 Rule 22 of CPC - The court discussed the provisions of Order 21 Rule 22 of CPC, which deals with the notice to show cause against execution in certain cases. The court highlighted the discretionary power of the executing court to order notice and emphasized that even in cases where notice is ordered, the executing court has the discretion to proceed with delivery. The judgment also referred to the circular of the court in ROC No:195/76.Con.B2 dated 22nd November 1977, emphasizing that statutory provisions prevail over administrative circulars. The court's decision was influenced by the interpretation of these legal provisions, allowing the executing court to exercise discretion in ordering notice and proceeding with delivery.
Fact of the Case:
The respondent filed for eviction of the revision petitioner before the Rent Controller. After various proceedings, an eviction order was passed. The revision petitioner challenged the order of delivery passed by the Executing Court, citing violations of natural justice and incorrect particulars in the execution petition.
Finding of the Court:
The court found that the executing court had the discretionary power to order notice and proceed with delivery, even if notice was ordered. It held that the revision petitioner should have approached the appellate forum to contest the inexecutability of the eviction order and obtain stay, instead of raising objections before the executing court.
Issues: The main issues were the violation of natural justice, incorrect particulars in the execution petition, and the discretionary power of the executing court to order notice and proceed with delivery.
Ratio Decidendi: The court's decision was based on the interpretation of Order 21 Rule 22 of CPC, emphasizing the discretionary power of the executing court to order notice and proceed with delivery. It also highlighted the precedence of statutory provisions over administrative circulars.
Final Decision: The revision was dismissed, and the court emphasized that the appropriate forum for the revision petitioner to contest the inexecutability of the eviction order and obtain stay was the appellate forum.
1. Inveighing the order dated 09.10.2009 made in E.P.No.439 of 2009 in RCOP No.1108 of 2004 on the file of XVI Judge, Small Causes Court, Chennai, this civil revision petition is focussed.
2. Heard both sides.
3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent herein filed RCOP No.1108 of 2004 before the Rent Controller concerned. After various proceedings before the Rent Controller as well as the higher for a, it ended in passing an eviction order as against the revision petitioner herein. Whereupon the respondent/landlady, did choose to file E.P.No.439 of 2009 for obtaining delivery of possession. The trial court ultimately ordered delivery. Being aggrieved by and dissatisfied with the order of delivery passed by the Executing Court, this revision is focussed on the following main grounds:
1. The executing court was wrong in simply ordering delivery without waiting to see as to whether the notice earlier ordered on 07.10.2009 by it, was served on the revision petitioner/judgment debtor or not.
2. The learned Judge made an endorsement as though she heard both sides when in fact the counsel for the Judgment debtor was not at all heard.
3. The revision petitioner herein moved the stay petition before the executing court but that was not dealt with as per law, and it was returned, ignoring the judgment of this court reported in 1993(1) LW 331.
4. Despite furnishing the SR number of the appeals filed as against the order of the Rent Controller in RCOP, the Executing court failed to stay the proceedings or give opportunity to the Judgment debtor to put forth his objection in the E.P.
5. When the Advocate for the Judgment Debtor made representations, the learned Judge of the Executing Court stated that she would go through the judgment cited supra. However, it appears, she returned the said stay petition.
6. The principles of natural justice were violated by the learned Judge. As such, ordering of delivery without hearing the Judgment Debtor in this case was not proper.
7. The particulars furnished in the execution petition was not correct relating to rents and the Judge concerned did not take into account the said fact also.
As such, the revision petitioner/ judgment debtor prays for setting aside the order of delivery passed by the Executing Court on 09.10.2009.
4. It so happened that in this matter stay petition i.e.M.P.No.1 of 2009 was filed by the revision petitioner herein, but subsequently it was endorsed as follows:
"This petition is not pressed for the time being".
Before my learned predecessor, who dealt with this matter both sides submitted their arguments and my learned predecessor passed order dated 12.01.2010, the operative portion of it would run thus:
"25. On a careful consideration of respective contentions and in view of the qualitative and quantitative discussions referred to supra and since the petitioner/tenant challenges the order of the Executing Court in E.P.No.439 of 2009 dated 9.10.2009 contending inter alia that the words Heard both sides have been inserted in the order later by the learned Rent Controller, this Court deems fit and proper to admit the civil revision petition inasmuch as , this Court opines that the entire gamut of the matter requires detailed examination at the time of final hearing of the civil revision petition in threadbare and also bearing in mind of the over all assessment of the peculiar facts and circumstances of the case in an integral fashion and also taking note of various long winding rent control proceedings upto the level of this Court between the parties, this Court exercising its inherent,plenary jurisdiction, discretionary incidental or ancillary power in a certain situation of the present kind, directs the petitioner/tenant to deposit a sum of Rs.48,25,590/-(Rupees Forty Eight Lakhs, twenty five thousand five hundred and ninety only) t
