AI Structured Summary
Not yet generated for this judgment
Judgment
K. Padmanabhan Nair, J.—The 6th judgment debtor in E.P. No. 26 of 2004 in O.S. No. 99 of 1976 on the file of the Subordinate Judge''s Court, Nedumangadis the petitionerinW.P.(C)No. l8707/2004. This Writ Petition is filed challenging an order of delivery of decree schedule property passed by the executing Court without notice to the judgment debtor.
W.P.(C) No. 19507 of 2004 is filed by one of the decree holders challenging the order of redelivery of the suit property passed by the very same Court.
The Respondents 1 to 26 and four others together filed O.S. No. 99 of 1976 for redemption of a mortgage and recovery of the suit property. A decree allowing redemption was passed on 8.9.1978. In S.A. No. 250 of 1984 this Court by judgment dated 22.3.1991 modified the decree passed by the Trial Court as a preliminary decree. Subsequently a final decree was passed on 31.5.2003.
The decree holders filed E.P. No. 26 of 2004 for delivery of the decree schedule property. The prayer No. 2 in the execution petition was to issue notice to the judgment debtors and thereafter effect delivery through Court. The above prayer reads as follows:
Even though the prayer in the execution petition was to effect delivery with due notice to the judgment debtors, the learned Sub Judge did not order notice as prayed for but straightaway issued process to effect delivery of the property and posted the execution petition for delivery. The 6th judgment debtor has filed this Writ Petition challenging that order.
The Writ Petition was filed on 24.6.2004 and on that day itself this Court adjourned the delivery for a period of one month. But the delivery was effected on 24.6.2004. According to the decree holders delivery was effected before the receipt of a copy of the stay order of this Court. This is disputed by the judgment debtor. It was contended that actual delivery was not effected but records were fabricated by the Amein to make it appear that delivery was effected before the 12.00 noon on 24.6.2004. It is not necessary to consider that contention in this Writ Petition because of the subsequent events. The judgment debtors filed E.A. No. 123 of 2004 forredelivery. The executing Court allowed that application and ordered redelivery and the property was redelivered to the judgment debtors and now they are in possession of the decree schedule property.
The only reason stated by the learned Sub Judge for ordering delivery without issuing notice to the judgment debtors is that no Rule 22 notice was necessary in the execution petition as the same was filed within two years from the date of decree. The learned Sub Judge failed to note that the execution petition was filed to execute a redemption decree and one of the prayers in the execution petition was to execute the decree after issuing notice to the judgment debtors. The relevant portion of the final decree passed by this Court reads as follows:
"5. Respondents are entitled to receive the subsequent value of improvements which can be considered at the execution stage.
The petitioners are also entitled to get damages if any, and which can also be considered at the execution stage."
The petitioners are entitled to get compensation for improvements made subsequent to the date up to which compensation for improvements has been adjudged in the decree as provided u/s 5(3) of the Kerala Compensation for Tenants'' Improvements Act. If the judgment debtors are entitled to revaluation u/s 5(3) of the Compensation for Tenants'' Improvements Act, it is the duty of the executing Court to determine the quantum. In such cases the tenant is entitled to be in possession until he is paid not only the compensation found due under the decree, but also the compensation reassessed u/s 5(3) of the Act as held in Mathai v. Narayana Pillai 1960 KLT 1192.
The learned counsel appearing for the decree holders has argued that there is no provision in the CPC which enjoins that before ordering delivery of immovable property the executing Court shall give notice of the execution petition to the judgment debtor before issuing process. It is argued that notice is mandatory only if the Execution Petition is filed under Rule 16 or 22 of Order XXI of C.P. Code.
It is argued that wherever framers of the C.P. Code thought it fit that notice shall be given to the opposite party before issuing process provisions are made in the relevant rules of Order XXI itself. It is argued that Rule 24 of Order XXI casts a mandatory duty on the executing Court to issue process for the execution. It is also argued that there is no provision in the Civil Rules of Practice also which makes it obligatory on the part of the executing Court to issue notice to the judgment debtor before issuing process in execution of the decree for recovery of immovable property.
Sections 36 to 74 of the CPC deal with execution of the decree. Under Sections 51 to 67 deal with the procedure in execution. Proviso to Section 51 provides that if the decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity to show cause why he should not be committed to in prison. So before ordering detention of a judgment debtor in civil. prison notice of show cause is to be issued to him.
Order XXI of the CPC deals with execution of decrees and orders. Order XXI Rules 10 and 11 deal with application of execution. Rule 11 deals with two types of applications; oral application and written application. When written application is filed, it shall contain the particulars enumerated in R.II(2) of Order XXI of C.P. Code.
Rules 1 and 2 Order XXI deal with payment of money due under the decree to the decree holder by the judgment debtor. Order XXI Rule 1(2) provides that judgment debtor shall give notice to the decree holder either through Court or through post. Sub-rule(2) of Rule 2 of Order XXI of the CPC also provides that notice shall be given to the decree holder on an application filed by the judgment debtor. Notice is mandatory before issuing process if the execution petition is filed under any one of the following Rules of Order XXI.
Order XXI Rule 16 Application by transferee of a decree. Order XXI Rule 22 Notice to show cause against execution in ''certain cases. Order XXI Rule 34 Decree for execution of document or enforcement of negotiable instrument. Order XXI Rule 37 Discretionary power to permit judgment debtor to show cause against detention in prison. Order XXI Rule 46A Notice to gamishee. Order XXI Rule 46D Procedure where debt belongs to third person. Order XXI Rule 49 Attachment of partnership property. Order XXI Rule 50 Execution of decree against firm. Order XXI Rule 53 Attachment of decrees Order XXI Rule 66 Proclamation of sale by public auction.
Rules35 and 36 of Order XXI of CPC which deal with execution of decree for deli very of immovable property, do not specifically provide forgiving notice to judgment debtor before issuing process.
When a written application under Order XXI Rule 11(2) is filed the procedure of receiving the application for execution of decree is dealt with in Rule 17 of Order XXI. The relevant provisions of Order XXI Rule 17 read as follows:-
"(1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule(2), the Court shall ascertain whether such of the requirements of Rules l 1 to 14 as may be applicable to the case have been complied with, and if, they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it,
(2) xxx xxx xxx(3) xxx xxx xxx. xxx xxx xxx (4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application."
R.17(l) of Order XXI prescribes the procedure to be followed on receiving an application for execution of a decree. It casts a duty on the Court to ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with or not. In Jugal kishore Saras v. M/s. Raw Cotton Company Ltd. AIR 1955 SC 376 it was held that if those provisions are not complied with the Court can either reject the application at once or allow the defect to be remedied. The executing Court has got a discretion to allow the necessary amendment. So it is clear that on receipt of an execution petition the executing Court shall apply its mind and admit or reject the same. The provisions contained in Rule 24 which deal with process of execution are also relevant. Order XXI Rule 24(l) reads as follows:
"R.24( 1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree."
Rule 24 of Order XXI provides that if the preliminary procedure prescribed by Rule 17 and other rules have been complied with the Court may issue process ''unless it sees cause to the contrary''
A combined reading of Rules17 and 24 shows that a discretion is given to the executing Court either to issue process or notice. That position is clear from the expression ''unless it sees cause to the contrary'', occurring in Rule 24 of Order XXI.
In J.C. Galstaun Vs. F.E. Dinshaw and Others, a Division Bench of the Calcutta High Court had considered the power of the executing Court to postpone the issue of process and held that the executing Court has got an inherent power to stay or postpone the issue of process. It was held as follows:
....."......In England judgments and orders for the recovery of payment of a sum of money, except such as are usually enforced by proceedings for contempt and except in such cases as according to the rules cannot be enforced without the leave of the Court, and except in cases where the judgments or orders impose a restriction upon the right of immediate enforcement, may, generally speaking, be enforced immediately upon signing the judgment or drawing up or otherwise completing the order by the issue of a writ of fieri faciss (on goods, chattels, moneys and securities) or of alegit (on land only): Land Credit Co. v. Lord Fermroy (13). So also with regard to a judgment for recovery of possession of land for which a writ of possession will issue."
The Court further held as follows:
".....It follows, therefore, that the right of the decree holder to execute his decree unless the decree itself imposes a restriction upon the right of immediate enforcement, arises as soon as the decree is complete. But, consistently with this right, if the Court finds that its processes for its enforcement should be delayed for a while, I am of opinion the Court is not powerless; but the discretion that it has lies within very narrow limits and it is quite easy to conceive of cases in which this discretion may rightly and justly be exercised."
So, the executing Court must apply its mind to the terms of decree and consider whether there is any reason to postpone the issue of process. If the Court finds that there is no need to postpone the issue of process it shall pass a reasoned order and issue process in execution.
In Gopalan Vijayan Vs. Kunchanadhan Raveendran and Another, the Apex Court set aside the order of redelivery passed by this Court on an application filed by the judgment debtor on the ground that the delivery was ordered without notice to him. In Gopalan Vijayan''s case notice of execution petition was served on the judgment debtor. But subsequently further proceedings in the execution petition was stayed by the Appellate Court. After the disposal of the appeal the decree holder filed an application to advance the hearing of the execution petition. Though notice of the petition to advance the hearing was served on the counsel for the judgment debtor he did not appear on the date on which the petition was posted. That petition was allowed. A delivery was ordered and effected. Thereafter the judgment debtor filed a petition for redelivery on the sole ground that the order of delivery was passed without notice to him. The executing Court dismissed that application. This Court in a Civil Revision Petition filed by the judgment debtor allowed the application and ordered redelivery. The Apex Court found that the judgment debtor had no valid objection against the execution of decree and set aside the order passed by this Court. So it was not a case in which the Court ordered delivery at the first instance without notice to the judgment debtor. Further the Apex Court in that case directed the assignee decree holder to pay an amount of Rs. 2,000/- to the judgment debtor as compensation. So, this decision also supports the case of the petitioners that it is not proper to order delivery straight away in the execution petition without notice to the judgment debtors.
Chapter VIII of Civil Rules of Practice deals with proceedings in execution. Rule 272 provides that the provisions of Chapter VIII apply to all proceedings in execution. Rule 278 provides that an application in writing for execution shall be in ''Form No. 51. Rule 280 deals with defective application. Rule 281 deals with notice of petition. Rule 282 deals with execution of decree against the State. It reads as follows:
"282. Execution of decree against State : Where the application for execution is of a decree against the State, the Court to which such application is made, shall ordinarily issue a notice to the Government Pleader and allow reasonable time for payment of the money or other satisfaction of the decree as prayed for."
R.282 provides that if State is the judgment debtor ordinarily notice shall be given. A reading of relevant Rules of Order XXI and rules under Chapter VIII of Civil Rules of Practice shows that if notice of execution petition is mandatory provisions are made in the relevant rules itself. But issuing process in execution of a decree for delivery of building or land is likely to cause hardship and irreparable injury to the debtor. No prejudice will be caused to the decree holder by ordering notice. But in view of the provisions contained in Rules 17 and 24 of Order XXI of CPC and Rules 281 and 282 of the Civil Rules of Practice, ordinarily the Court shall issue notice in other cases also, Notice need be dispensed only in exceptional cases and in such cases the Court shall record its reasons why it is dispensing with the issue of notice to the judgment debtor.
In this case the execution petition is filed for execution of a redemption decree. In the final decree it was found that the petitioners are entitled to get value of improvements effected subsequent to the visit of the Commissioner during trial stage which can be ascertained only during the execution proceedings. The learned Sub Judge failed to note that the execution petition is filed for delivery of extensive immovable property and no prejudice will be caused to the decree holders by ordering notice to the judgment debtors. It is very pertinent to note that the prayer in the execution petition was to order delivery after serving notice of the execution petition on the judgment debtors. The Court below had acted mechanically and ordered delivery without any application of mind at all. By effecting delivery without ascertaining the value of improvements due to the judgment debtors, irreparable injury is caused to them.
The decree holders took delivery of the property in pursuance of the order of delivery passed by the executing Court. But subsequently the executing Court ordered redelivery of the property and the judgment debtors are in possession of the decree schedule property. Since the judgment debtors are entitled to be in possession of the property until the deposit of the compensation for improvements to be assessed u/s 5(3) of the Act the order of delivery passed by the executing Court is illegal and liable to be set aside. Hence W.P.(C) No. 8707 of 2004 is only to be allowed.
Learned counsel for the decree holders submits that the decree holders are highly aggrieved by the order of redelivery ordered without any sufficient reason. It is submitted that sufficient safeguards may be made to preserve the property during the pendency of the proceedings in the Court below. It is open to the decree holders to file appropriate petition before the executing Court and if such a petition is filed, the Court below shall hear the objection raised by the judgment debtors and pass appropriate orders in accordance with law.
I have already found that prejudice is caused to the judgment debtors in ordering delivery without notice. The learned Sub Judge only corrected a mistake committed by him by ordering redelivery. No grounds are made out to interfere with the order passed by the executing Court in ordering redelivery. So W.P.(C) No. 19507 of 2004 is only to be dismissed.
In the result, W.P.(C) No. 18707 of 2004 is allowed. The order of delivery passed by the Court below in E.P. No. 26 of 2004 in O.S. No. 99 of 1976 is set aside. The learned Sub Judge is directed to take E.P. No. 26 of 2004 back to file and dispose of the same afresh in accordance with law after giving a reasonable opportunity to the judgment debtors to file their objections. W.P.(C) No. 19507 of 2004 is dismissed.