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2001 DIGILAW 595 (CAL)

DAISY MANTOSH v. KAPIL KAPOOR

2001-09-14

GORACHAND DE, SAMARESH BANERJEE

body2001
G. C. DE, J. ( 1 ) SMT. Daisy Mantosh, the judgment debtor being aggrieved by and dissatisfied with the order No. 7 dated 4. 3. 1989 passed by Shri S. B. Muhuri, Assistant District Judge of the First Court at Alipore in Title Execution Case No. 8 of 1988 filed this appeal. ( 2 ) BRIEFLY stated the fact is that the plaintiff/decree-holder filed the execution case on 29. 7. 1988 praying for registration of a Deed of Conveyance through Court in her favour in respect of the suit property. On that date the execution case was registered and 31. 7. 1988 was fixed for verification. Since the decree-holder did not take any steps on 31. 7. 1988 and the execution application was not verified, the next date was fixed on 3. 10. 1988 for order after verification. On 3. 10. 1988 the decree holder filed a petition along with a draft deed of conveyance and plan to enable him to get the approved draft deed endorsed on the requisite stamp paper for execution and registration. As none moved the petition an order was passed by the executing Court for putting up the record as and when the petition was moved on behalf of the decree holder. ( 3 ) ON 25. 11. 1988 the decree holder filed a petition praying for fixing a date for hearing of the petition filed on 3. 10. 1988. But as the copy of the petition was not served on the judgment debtor, 19. 1. 1989 was fixed for hearing of the petition and a direction was issued to serve the copy of the petition on the judgment debtor in the mean-time. On 19. 1. 1989 the decree holder filed a copy of a notice and postal receipt along with a petition praying for recording the service of the notice upon the judgment debtor. On the same date, the petition dated 3. 10. 1988 was heard and an order was passed by the learned Assistant District Judge directing the Sherestadar to check the draft of the proposed deed and to report by the 15th of February 1989. As no report was received the next date was fixed on 4. 3. 1989 for the report of the Sherestadar. ( 4 ) ON 9. 3. 1988 was heard and an order was passed by the learned Assistant District Judge directing the Sherestadar to check the draft of the proposed deed and to report by the 15th of February 1989. As no report was received the next date was fixed on 4. 3. 1989 for the report of the Sherestadar. ( 4 ) ON 9. 3. 1989, the impugned order was passed indicating that the Sherestadar had already filed the report, and the draft deed was approved on the basis of an order dated 17. 2. 1989 passed on the draft deeds and accordingly, the learned advocate for the decree holder was directed to take back the approved draft and to file the same along with the original duly typed on proper stamp paper for comparing by 18. 3. 1989. ( 5 ) IT is already stated above that being aggrieved by the said order the instant appeal has been filed. The decree holder opposite party appeared and contested this appeal. ( 6 ) IN course of hearing of this appeal, the learned counsel appearing on behalf of the appellant pointed out that the provisions of sub rule (2) of Rule 34 of Order 21 of the Code of Civil Procedure were not complied with, that no notice in Form No. 10 of the appendix 'e' to the Code was ever sent to the judgment debtor along with the draft of the proposed deed for service and that the judgment debtor did not get any opportunity to peruse the draft and to note his objection, if any. It is also contended that no formal order of approval of the draft was passed by the Court and that the Sherestadar being a ministerial officer could not pass any order or comment as regards approval of the draft as was done in this case. Hence the learned counsel concluded that the order dated 4. 3. 1989 is liable to be set aside. ( 7 ) THE learned counsel for the decree-holder/respondent, on the other hand, supported the order and contended that the draft of the proposed deed was duly approved as the judgment debtor opted not to appear and contest the application filed by the decree holder. Accordingly, the learned counsel concluded that there was no merit in the appeal and it was liable to be dismissed. Accordingly, the learned counsel concluded that there was no merit in the appeal and it was liable to be dismissed. ( 8 ) ADMITTEDLY, a decree was passed against the judgment debtor and the decree holder has prayed for execution of the decree which includes the execution and registration of a deed of conveyance. From the certified copies of the order-sheet produced, it appears that after the verification and registration of the execution case the decree holder filed a petition along with a draft deed to be executed for the purpose of approval of the same. But no order was passed by the Court for causing the draft to be served on the judgment debtor together with a notice requiring his objections to be made within a specified time in terms of sub-rule (2) of Rule 34 of Order 21 of the Code. On the other hand, the Court by order No. 4 dated 25. 11. 1988 directed the decree holder to serve a copy of the petition dated 3. 10. 1988 on the judgment debtor. It further appears from the order No. 5 dated 19. 1. 89 that the decree holder opted to file a petition praying for recording of service of the notice upon the judgment debtor along with a copy of a notice and postal receipt. But no order was passed by the Court on the said petition and it is nowhere indicated that the notice as required under sub-rule (2) of Rule 34 of Order 21 was ever served upon the judgment debtor. On the other hand, the Court was pleased to direct the Sherestadar of that Court to check the draft and report. Finally, by the impugned order the Court directed the learned advocate for the decree holder to take back the approved draft to file the same along with the original duly typed document on proper stamp paper for comparing etc. In the said order, it is also indicated that the Sherestadar filed a report after checking the draft in terms of the order No. 5 dated 19. 1. 89 and order No. 6 dated 15. 2. 1989 and the draft deed had been approved vide order on petition on 17. 2. 1989. So it is sufficiently clear that the draft was approved on a date not fixed for the purpose. 1. 89 and order No. 6 dated 15. 2. 1989 and the draft deed had been approved vide order on petition on 17. 2. 1989. So it is sufficiently clear that the draft was approved on a date not fixed for the purpose. It is rightly pointed out by the learned counsel for the judgment debtor that no scope was there for raising any objection on a date not fixed by the Court in the order-sheet and ventilated in the cause list maintained by that Court. ( 9 ) IT is also sufficiently clear that no notice was directed to be served on the judgment debtor by the Court and there is nothing on record to show that a notice in form No. 10 of appendix 'e' to the Code was ever served. It simply indicates that a copy of the petition dated 3. 10. 1988 was sent to the judgment debtor. Even then there is no proof that the notice was ever served on the judgment debtor and no order to effect was passed by the executing Court. Accordingly, we hold and conclude that the notice required under sub-rule (2) of Rule 34 of Order 21 of the Code does not appear to have been served. ( 10 ) TRUE it is that non-compliance with the requirement to issue notice to the judgment debtor does not itself vitiate the sale-deed executed under the orders of the Court, unless the judgment debtor can show prejudice. But in this case the sale-deed has not yet been executed and there is nothing on record to show that the copy of the draft deed was ever served upon the judgment debtor. On the other hand, the judgment debtor on 16. 3. 1989 appeared before the executing Court and filed an application under section 151 read with section 153 of the Code praying for an order to set aside the order passed on 4. 3. 1989. The order 21 rule 34 itself gives a right to the judgment debtor to have a copy of the draft deed and to raise objection and this right cannot and should not be taken away as has been done in this case. 3. 1989. The order 21 rule 34 itself gives a right to the judgment debtor to have a copy of the draft deed and to raise objection and this right cannot and should not be taken away as has been done in this case. ( 11 ) IN this connection, it is also to be mentioned that under the provisions of Order 48 Rule 3, a proper form as given in the appendices, with such variation as the circumstances of each case may require, should be used for the purposes mentioned therein. After the Calcutta amendment the Rule 3 of Order 38 reads as follows:"the forms given in the appendices, or such other forms as may be prescribed by the High Court of Judicature at Fort William in Bengal, with such variation as the circumstances of each case may require, shall be used for the purposes herein mentioned. " ( 12 ) FORMS contained in the appendices to the Code do not form part of the Code and hence liberty is given to the parties to use such forms with such variations as the circumstances of each case may require. But using of an appropriate form is mandatory. In appendix 'e', the Form No. 10 is specifically designed for giving notice to state objections to draft of document. Order 48 rule 2 makes it clear that all notices required by the Court is to be given or served in the manner provided for the service of summons. In the impugned order there is no indication that the party was directed to serve the notice under Registered post with AD or through the process server of the Court or by any other means. So judging from this point also, we find that there was non-compliance of the provisions of the Code. ( 13 ) IT is also to be noted that the Sheristadar of the Court was directed to check the draft and report but there is nothing in the impugned order to show or indicate that the Court after perusal of the said report duly approved the draft. On the other hand, it is indicated that the order of approval was there V. O. P. (order on petition) on 17. 2. 1989. This indicates that the draft was approved by an order passed on the petition filed by the decree holder. On the other hand, it is indicated that the order of approval was there V. O. P. (order on petition) on 17. 2. 1989. This indicates that the draft was approved by an order passed on the petition filed by the decree holder. The details of the order is not depicted in the order sheet. Thus, in this regard there was a departure from the Rule 368 of the Civil Rules and Orders, Volume I framed by this Court. In note 1 to the said Rule 368 there is a specific direction that orders shall never be written on petitions, returns, reports and other similar documents. The orders and the reasons thereof shall, except as provided in Rule 370, be recorded only in the order sheet (emphasis given) and the serial number there in with the date of the order passed and no more shall be noted at the head of the petition, report, etc. The Executing Court appears to have overlooked these provisions of the Civil Rules and Orders for which the order passed on the petition itself cannot be accepted as an order passed by the Court. The impugned order also suffers infirmity from this angle too. ( 14 ) SO considering all these aspect and keeping in view the fact that the judgment debtor entered into appearance before the Executing Court, the impugned order No. 7 dated 4. 3. 1989 is liable to be set aside and an opportunity is to be given to the judgment debtor to verify the draft of the proposed deed in terms of the Order 21 rule 34 (2) of the Civil Procedure Code. ( 15 ) IN view of the above discussion the appeal is allowed. The order No. 7 dated 4. 3. 1989 is hereby set aside. The Executing Court is directed to see that a copy of the draft of the proposed deed is served on the judgment debtor within a specified time and a date is fixed for consideration of objection, if any, filed by the judgment debtor. If no objection is filed the Executing Court shall proceed to dispose of the case following the provisions of Order 21 Rule 34 (2) of the Code. If no objection is filed the Executing Court shall proceed to dispose of the case following the provisions of Order 21 Rule 34 (2) of the Code. If any objection is filed the Executing Court shall take into consideration the said objection and thereafter, shall pass necessary order approving or altering the draft as it thinks fit and thereafter, to pass necessary order for completion of the execution and registration of the deed following the procedure laid down under Order 21 Rule 34 (2) of the Code. Both the parties do bear their respective costs of this Appeal. ( 16 ) SINCE the matter is long pending the parties are directed to appear before the Executing Court on the 8th October, 2001. Let a copy of this order be sent to the Executing Court by the date fixed. Parties are given liberty to produce a copy of this order to the Executing Court on the date fixed. Let urgent xerox certified copies of this order be handed over to the parties within seven days on observance of required formalities. S. Banerjea, J.- I agree. Appeal allowed later the learned advocate appearing for the respondent prays for stay of operation of this judgment and order, such prayer is considered and rejected.