Karunakaran Pillai vs The Additional Munsiff and Another

R. Bhaskaran, J.—Heard both sides.

The Petitioner, now an octogenarian, has obtained a decree as early as in 1984. His attempt to get the fruits of the decree is still under the cob web of procedural delay. In this petition for execution of the decree which was for declaration of title and injunction notice under Rule 22 of Order 21 CPC was issued. Respondent entered appearance. A Commission was issued. The Commissioner filed a report. P.W. 1 was examined. Exts. A-1 to A-3 were marked. After closing the evidence, the parties were heard and it was posted for orders. Therefore, again the case was posted for hearing on 5th February 2002. On that day, the execution Court directed notice under Rule 32 of Order 21. The question in this case is whether after notice under Rule 22 of Order 21 is issued and evidence adduced and after hearing the parties is there any necessity for a further notice under Order 21 Rule 32 and to repeat the entire thing over again.

The execution Court did not rely on any rule or precedent to reopen the case and to order notice under Rule 22 of Order 21. The learned Counsel for the Respondent also could not bring to my notice any authority for a such repeat performance. The notice under Rule 22 does not exclude from its operation the decree for declaration of title or injunction. The notice is issued in case of contingencies specified in that provision viz., where the E.P. is filed after the expiry of two years of the decree when it is against the legal representatives of the original judgment-debtor or where the relief is required from the assignee or receiver after the judgment-debtor is declared insolvent. Therefore, to order notice again to the judgment-debt or under Rule 32 after closing of evidence is an unnecessary step which puts the decree-holder to serious prejudice and hardship. It should be avoided unless the Statute otherwise mandates. The learned Counsel for the Petitioner brought to my notice the unreported order in G.R.P. No. 1856 of 1996 where this Court expressed any such necessity of issuing notice under Rule 32.

In the light of the above discussion, the direction of the execution Court for issue of fresh notice under Order 21, Rule 32 is set aside. The execution Court should i proceed with the E.P. on the basis of the available evidence after hearing both sides. It is of course open to the execution Court to permit both sides to adduce further evidence if the Court feels that any further evidence is required. The execution Court shall dispose of the same within three months from the date of receipt of a copy of this Judgment.

O.P. is disposed of as above.