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2007 DIGILAW 773 (PAT)

Dwarika Prasad v. Indradeo Lal

2007-04-17

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This miscellaneous appeal has been preferred against the order dated 21.9.2000 passed by the SubJudge 1st, Nalanda at Biharsharif, in Miscellaneous Case No. 25/90/13/94 arising out of Execution Case No. 11/89 whereby he has been pleased to dismiss the said Miscellaneous Case filed by the defendants-judgment debtors-appellants. 2. During the course of argument, none appeared on behalf of the appellants to argue in the appeal in spite of repeated calls. The learned Sr. Advocate, Sri Ram Kumar Sharma, appeared on behalf of the respondent no. 2 and submitted before this court that the appeal may be disposed of on merit instead of dismissing the appeal in default and, accordingly, this appeal is being disposed of on merit. 3. The brief facts of the case are as follows: The respondent no. 2 State Bank of India, Bazar Branch, Biharsharif, through its Branch Manager filed Money Suit No. 117/81 against the appellants for recovery of loan. The said suit was decreed on contest in favour of respondent no. 2. The present appellants, who were defendants in the suit, did not prefer any appeal and, as such, the decree passed in the suit became final. On 28.8.89, Execution Case No. 11/89 was filed in which notices were issued against the judgment debtors but when after service of notice the judgment debtors-appellants did not appear then the properties were attached and on 14.6.90 the properties were auction sold and on 16.7.90 the sale was confirmed and then on 16.8.90 certificate of sale was granted, Thereafter, on 20.11.90, the appellants filed miscellaneous case which was numbered as Miscellaneous Case No. 25/90 on the ground that the notice of execution case was not properly served upon them and they had no knowledge about the institution of the execution case. It appears that the learned Sub-Ordinate Judge by passing the impugned order dismissed the miscellaneous case. 4. It has been submitted by the learned advocate of the respondent no. 2 that the impugned order will show that the Money Suit was hotly contested by the defendants-appellants and in their presence the money suit was decreed and, so, this fact establishes that the appellant had full knowledge about the decree passed against him. 4. It has been submitted by the learned advocate of the respondent no. 2 that the impugned order will show that the Money Suit was hotly contested by the defendants-appellants and in their presence the money suit was decreed and, so, this fact establishes that the appellant had full knowledge about the decree passed against him. Learned Advocate further submitted that as per the provision contained in Order 22 of Rule 21 of the Code of Civil Procedure, the decree holder was not required to give any notice to the judgment debtor if the execution case was filed within two years from the date of decree but even then the decree holder gave notice to the judgment debtors (appellants) about the filing of execution case. The learned Advocate submitted that the impugned order will show that the learned Sub-Ordinate Judge has come to the conclusion that the notice was duly served upon the judgment debtors. Learned Advocate further submitted that Miscellaneous Case No. 25 of 1990/13/94 filed by the appellants was itself barred under Article 127 of the Limitation Act as the same was filed much after the expiry of sixty days of the proclamation of sale as well as confirmation of sale. He further submitted that Sec. 5 of the Limitation Act under which the courts have power to condone the delay is not applicable to the provision of Order 21 of the Code of Civil Procedure and, as such, the courts have no power to condone the delay in such cases. On the above grounds, learned advocate of the respondent no. 2 prayed to dismiss the appeal. 5. From perusal of the impugned order it appears that Money Suit No. 117 of 1981 was hotly contested by the defendants-judgment debtors, who are appellants before this court. It further transpires that in presence of the appellants the money suit filed by the defendant no. 2 was decreed which establishes beyond doubt that the appellants had knowledge that money decree has been passed against them. 6. From the perusal of the record, it appears that for executing the decree passed in Money Suit No. 117/81, Execution Case No. 11/89 was filed within a period of two years. 2 was decreed which establishes beyond doubt that the appellants had knowledge that money decree has been passed against them. 6. From the perusal of the record, it appears that for executing the decree passed in Money Suit No. 117/81, Execution Case No. 11/89 was filed within a period of two years. As per the provision contained under Order 21 Rule 22 of the Code of Civil Procedure, a decree holder is not required to give notice to the judgment debtor if the execution case is filed within a period of two years from the date of decree. However, the lower court records as well as the impugned order will show that the decree holder had given notice to the appellants-judgment debtors about the filing of the execution case which is apparent from following observation of the learned Sub-Ordinate Judge made at para 14 of his judgment. The same is quoted below: "It appears that from the record that the applicants have taken the plea that they had not been noticed of the execution case after the attachment and preparation of decree in the title suit. On the basis of the various discussions and the admission of the applicants witness no. 3 Mahender Paswan, which I have made above it is abundantly clear that they had sufficient notice of the filing of the execution case after the result of the suit and preparation of the decree in favour of the decree holder." I am of the view that there is no reasonable ground to differ with the findings of the learned Sub-Ordinate Judge which is in conformity with the materials available on record with regard to the service of notice of execution case on the appellants-judgment debtors and, accordingly, I uphold the finding of the learned court below on this point. 7 From the perusal of the judgment, it further transpires that in Execution Case No. 11/89, auction sale was held on 14.6.90, which was confirmed on 16.7.90. As per the provision contained under Article 127 of the Limitation Act, for filing any objection or for setting aside any sale in execution of the decree, period of limitation has been prescribed as sixty days and it appears that the appellants-judgment debtors filed Miscellaneous Case No. 25/90/13/94 for setting aside the sale after the expiry of the period of limitation. Thus, admittedly, Miscellaneous Case No. 25/90/13/94 filed by the judgment debtors (appellants) was time barred. This point has been well discussed by the learned Sub-Ordinate Judge at para 15 of the judgment and thereafter, the learned Sub-Ordinate Judge has arrived at the finding that the Miscellaneous Case filed by the judgment debtors (appellants) was barred by law of limitation. 8. I think there is no reasonable ground to disagree with the finding of the learned Sub-Ordinate Judge and, as such, I confirm the said finding of the learned Sub-Ordinate Judge and hold that the Miscellaneous Case No. 25/90/13/94 filed by the judgment debtors-appellants was also barred by limitation. 9. In the result, I do not find any merit in this appeal and, as such, the same is hereby dismissed.