AI Structured Summary
Not yet generated for this judgment
Judgment
Vishwanath, J
The learned Counsel for the Revision petitioner-2nd judgment debtor is present. The learned Counsel for respondent-decree holder is absent.
In this Revision Petition the 2nd judgment debtor has challenged the order passed by the learned Small Cause Judge in Execution Case No. 2112/1995 on 10.4.1995 ordering attachment of salary of the petitioner-2nd judgment debtor.
It is clear that the decree against the Revision petitioner was passed on 22.7.1991. The execution has been levied on 9.3.1995 i.e. more than two years after the decree was passed.
Order 21 Rule 22(1) CPC. contemplates that a show cause notice should be issued where an application for execution is levied more than two years after the date of the decree. In the instant case the application for execution has been made more than two years after the decree.
Order 21 Rule 22(3) CPC. (Karnataka Amendment) contemplates that, for reasons to be recorded in writing, if the Court considers that issue of notice under Order 21 Rule 22(1) would cause unreasonable delay or would defeat the ends of Justice, show cause notice under Order 21 Rule 22(1) may be dispensed with and the Court may issue process in execution of the decree. In the instant case the learned Small Cause Judge has not passed any order as contemplated under Order 21 Rule 22(3) C.P.C.
Karnataka Amendment to Order 21 Rule 22(3) goes a step further. Proviso to Order 21 Rule 22(3) CPC. says that, even though the Execution Court has not recorded the reasons for dispensing with notice under Order 21 Rule 22(1) C.P.C. no order for execution of the decree shall be invalid owing to the omission of the Court to issue a notice as required under Order 21 Rule 22(1) C.P.C. or to record its reasons where the notice is dispensed with under Order 21 Rule 22(3) CPC. unless the judgment debtor has sustained substantial injury as a result of such omission. This provision says that, even if the reasons are not recorded in writing for dispensing with notice under Order 21 Rule 22(1), it is sufficient if the Executing Court has stated that it has dispensed with notice under Order 21 Rule 22(1) C.P.C. The Executing Court has not passed an order to the effect that it has dispensed with show cause notice under Order 21 Rule 22(1) C.P.C.
In any view of the matter, the order passed by the learned Small Cause Judge in Execution Case No. 2112/95 attaching the salary of the Revision petitioner-2nd judgment debtor without issuing a show cause notice to the Revision petitioner against whom the execution is levied requiring him to show cause as to why the decree should not be executed against him cannot be sustained. Accordingly it is set aside. Revision Petition is allowed.