A court is not required to issue notice to a judgment-debtor when an execution petition is filed within two years of the decree, allowing discretion in procedural matters.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 9^TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 OP(C) NO. 1687 OF 2022 AGAINST THE ORDER/JUDGMENT in EP 21/2022 IN OS 72/2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY PETITIONER/S:

K K MUSTHAFA AGED 49 YEARS KARIMBAN KUZHIYIL, PADANILAM P.O, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK, PIN-673 571.

BY ADV SUNIL N.SHENOI RESPONDENT/S:

MUHAMMED YASEEN A.M, AGED 40 YEARS ATHIKKAMANNIL HOUSE, KUNDAMANGALAM AMSOM DESOM, KOZHIKODE TALUK, REP.BY ITS P.A. HOLDER ABBAS K.P., AGED 47, S/O. LATE MAMMI, KANNIPPOYIL HOUSE, P.O. PADANILAM, KUNDAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 571.

BY ADVS.

K.A.SALIL NARAYANAN P.A. HARISH (AMICUS CURIAE)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.S DIAS,J.

---------------------------

OP(C) No.1687 of 2022 -----------------------------

Dated this the 9th day of November, 2022.

JUDGMENT

Confronted with Ext P2 proceedings dated

29.7.2022 in EP No.21/2022 in OS No.72/2019 of the Court of the Munsiff, Thamarassery, the judgment-debtor has filed the original petition. The respondent is the decree-holder.

2. The antecedent facts leading to the above proceedings, in a nutshell, are; the respondent had filed the above suit against the petitioner to give vacant possession of the plaint schedule shop room and other ancillary reliefs. The court below, by Ext P1 judgment, decreed the suit and directed the petitioner to give vacant possession of the shop room within two months from 28.2.2022. The petitioner was afÒicted with the corona virus, and, therefore, he was not in a position to challenge the judgment and decree within the prescribed time period. The respondent laid the decree to execution. The court below, without issuing notice to the petitioner, has ordered delivery of the property by Ext P2 proceedings. It is only when the Amin went to the property to effect delivery, the petitioner became aware of Ext P2 proceedings. The petitioner immediately filed AS No.90/2022 before the Court of the District Judge, Kozhikode, challenging the judgment and decree. The appeal stands posted to 2.9.2022. Ext P2 proceedings are vitiated and unsustainable in law. Hence, the original petition.

3. When the original petition came up for admission on 31.8.2022, on finding that no reasons have been stated for passing Ext P2 proceedings, this Court called for a report from the learned Munsiff.

4. The learned Munsiff, by communication dated

23.9.2022 has stated as follows:

“The above EP was filed on 22.6.2022. It was numbered on 27.6.2022, posted on 29.7.2022 for considering EA 1/2022 seeking dispensing the notice under Order 21 Rue 22 of the Code of Civil Procedure, 1908 to judgment debtor, EP was filed for executing the decree dated 28.2.2022 directing the judgment debtor, among the other things, to give vacant possession of the shop rooms within two months.

On 29.7.2022 EA allowed and dispensed notice to judgment debtor as the EP was filed within four months from the date of the decree and not after two years from the date of decree, it was filed against the judgment debtor himself and not against his legal representatives and the judgment debtor was not adjudged insolvent. Further the judgment debtor not paid any amount despite using the shop rooms belonging to the decree holder from 11.9.2016 onwards and admitting his title . As such this court neither issued notice to judgment debtor nor afforded him opportunity to file objection to EA.”

5. On receipt of the communication, this Court appointed Sri.P.A Harish as Amicus Curiae to assist the Court, in view of the substantial question of law involved in the matter. Sri.P.A Harish drew the attention of this Court to Order 21 Rule 22 and Rule 36 of the Code of Civil Procedure ( in short ‘ Code’) and submitted that if the execution petition is filed within two years from the passing of the decree, there is no necessity to is