Execution of a decree does not require notice to the judgment debtor if filed within two years, as per the provisions of the Code of Civil Procedure.

JUDGMENT

The original petition is filed challenging Exts.P5 and P7 orders passed in E.P.No.156/2022 in O.S No.680/2019 by the Court of the Principal Munsiff-II, Kozhikode. The petitioner is the judgment debtor and the respondents are the auction purchaser and the decree holder.

2. The short relevant facts leading to Exts.P5 and P7 orders, are:-

(i) The petitioner had availed a housing loan from the second respondent bank by creating an equitable mortgage. The petitioner defaulted in re-payment of the loan amount and the second respondent proceeded against the property of the petitioner under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (in short, SARFAESI Act’). The property was purchased by the first respondent in a public auction.

(ii) As the petitioner was in possession of the mortgaged property, this Court, by Ext.P1 judgment, granted liberty to the first respondent to approach the Civil Court.

(iii) The first respondent filed O.S.No.680/2019 before the court below, inter alia, for a decree of mandatory injunction. The suit was decreed as per Ext.P2 judgment.

(iv) The first respondent laid the decree to execution by filing E.P.No.156/2022.

(v) The execution petition was posted on 6.7.2022, but was adjourned for want of sitting and was finally posted to 24.11.2022. On the said day, the second respondent was called absent and was set ex-parte.

However, the petitioner was not served.

(vi) The first respondent then filed E.A. No.557/2022, to dispense with Order 21 Rule 22 notice contemplated under the Code of Civil Procedure (in short ’Code’) to the petitioner. The court below, allowed the application, by the impugned Ext.P5 order, and ordered the property to be delivered to the first respondent by the Amin. Consequently, Ext.P7 order was passed by effecting delivery and recording full satisfaction of the execution petition. Accordingly, the execution petition was closed.

(vii) Exts.P5 and P7 orders are manifestly wrong and unsustainable in law. Hence, the original petition.

3. Heard; Sri.Jayesh Mohankumar, the learned counsel appearing for the petitioner, Sri. S. Nirmal, the learned counsel appearing for the first respondent and Sri. S.Easwaran, the learned counsel appearing for the second respondent.

4. The point is, whether there is any illegality in Exts.P5 and P7 orders.

On an analysis of the pleadings and materials on record, it is evident that O.S. No.680/2019 was decreed on 25.2.2022. The first respondent laid the decree to execution by filing Ext.P3 execution petition on 27.5.2022 i.e., well within two years. The court below initially issued Rule 22 notice to the petitioner and the first respondent. Nonetheless, as the execution petition was filed well within two years, the first respondent filed E.A.No.557/2022, to dispense with Rule 22 notice to the petitioner. The court below, by the impugned Ext.P5 order, allowed the application and dispensed with notice to the petitioner. Thereafter, the court below, by the impugned Ext.P7 order, directed the Amin to deliver the property to the first respondent, recorded full satisfaction and then closed the execution petition. I do not find any error or illegality in the course adopted by the court below because the execution petition was filed well within two years after the passing of the decree. There is no requirement under the Code to issue Rule 22 notice to the judgment debtor when the execution petition is filed within two years. Thus, Exts.P5 and P7 orders do not warrant any interference by this Court under Article 227 of the Constitution of India. The original petition is meritless and is hence dismissed.

Sd/-

C.S.DIAS, JUDGE rmm10/4/2023 APPENDIX OF OP(C) 755/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED

03.12.2018 IN WPC 18301/2018 Exhibit P2 TRUE COPY OF THE JUDGMENT IN O.S.680/2019 DATED 25/02/2022 Exhibit P3 TRUE COPY OF E. P. NO. 156/2022 IN O.S.680/2019 DATED 27.05.2022 ON THE FILE OF THE MUNSIF