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Andhra High Court · body

2007 DIGILAW 838 (AP)

G. Kethamma v. Allam Keshava Raju

2007-09-05

G.ROHINI

body2007
ORDER 1. This Civil Revision Petition is directed against the order, dated 02.07.2007, in EA.No.187 of 2007 in E.P.No.97 of 2006 in O.S.No.381 of 2005 on the file of the Court of the Principal Senior Civil Judge, Warangal. 2. The suit was filed by the respondent herein for specific performance of an agreement of sale, dated 01.08.2002, said to have been executed by the defendants. The Revision petitioner is the first defendant, whereas the second defendant is her husband. The said suit was decreed ex parte on 29.12.2005 directing the defendant to execute a sale deed and get it registered in favour of the plaintiff in respect of the suit property on or before 28-2-2006 failing which the plaintiff shall be entitled to get the sale deed executed and registered as per law. There was also a direction that the plaintiff shall be put in possession of the suit property after execution of the sale deed as per law. Pursuant thereto the decree-holder/respondent herein filed E.P.No.97 of 2006 alleging that the defendants failed to execute the sale deed within the time prescribed in the decree. The said E.P. was also ordered ex parte and in pursuance thereof a sale deed was executed and registered through the Court in favour of the decree-holder and thereafter the judgment-debtor was directed to deliver vacant possession to the decree-holder. 3. At that stage, on 14-6-2007 the petitioner herein filed I.A.No.973 of 2007 to set aside the ex parte decree stating that the whereabouts of her husband (second defendant) were not known, and the advocate engaged by her to contest the suit, failed to take proper care resulting in ex parte decree which she came to know only on 07.06.2007 when the bailiff came to the suit house to take vacant possession pursuant to the order in E.P.No.97 of 2006. She also filed E.A.No.238 of 2007 to set aside the ex parte order in E.P.No.97 of 2006, along with E.A.No.229 of 2007 for stay of all further proceedings in the E.P. 4. In the meanwhile, the decree-holder/respondent herein filed E.A.No.187 of 2007 seeking police aid for delivery of possession of the suit schedule property alleging that when the bailiff went to schedule house in order to deliver the possession as per delivery warrant, the judgment-debtor obstructed the bailiff and consequently the warrant could not be executed. In the meanwhile, the decree-holder/respondent herein filed E.A.No.187 of 2007 seeking police aid for delivery of possession of the suit schedule property alleging that when the bailiff went to schedule house in order to deliver the possession as per delivery warrant, the judgment-debtor obstructed the bailiff and consequently the warrant could not be executed. Thus, it was prayed to provide police protection to the bailiff to enable him to deliver possession to the decree-holder. The petitioner herein filed a counter opposing the said application. However, the Court below allowed E.A.No.187 of 2007, by order, dated 02.07.2007, directing the Station House Officer to provide police aid to the bailiff to break open the lock of the schedule house under a panchanama. The said order is under challenge in this Revision petition. 5. I have heard the learned counsel for both the parties and perused the material on record. 6. The learned Counsel for the petitioner contended that the Court below was not justified in allowing E.A.No.187 of 2007 and granting police aid for taking delivery of the E.P. schedule house while keeping the applications to set aside the ex parte decree in the suit as well as the ex parte order in the execution petition pending. 7. On the other hand, the learned Counsel for the respondent vehemently contended that the impugned order which was passed in exercise of jurisdiction under Order 21 Rule 98 of C.P.C. shall be deemed to be a decree as per Rule 103 of Order 21 of C.P.C. and therefore only a Regular Appeal can be maintained but not a Revision Petition under Article 227 of the Constitution of India. 8. It is to be noted that the decree granted in O.S.No.381 of 2005 was a decree for delivery of immovable property after executing and registering a sale deed in favour of the plaintiff. As could be seen, the decree to the extent of execution and registration of the sale deed has already been executed pursuant to the order in E.P.No.97 of 2006. 9. During the execution of the other part of the decree for delivery of the schedule property, it was alleged by the decree-holder that there was obstruction/resistance by the judgment-debtor/petitioner herein. As could be seen, the decree to the extent of execution and registration of the sale deed has already been executed pursuant to the order in E.P.No.97 of 2006. 9. During the execution of the other part of the decree for delivery of the schedule property, it was alleged by the decree-holder that there was obstruction/resistance by the judgment-debtor/petitioner herein. Accordingly, he filed E.A.No.187 of 2007 seeking police aid to the Bailiff to enable him to deliver possession of the suit schedule property to the decree-holder and the same was ordered by the Court below. 10. Though E.A.No.187 of 2007 was filed merely quoting Section 151 of C.P.C., the learned counsel for the respondent sought to bring the said order within the purview of Rule 98 of Order 21 and thus contended that the order shall be deemed to be a decree. 11. However, I am unable to agree with the said contention. The impugned order, in my considered opinion, is traceable to the power conferred under sub-rule (3) of Rule 35 of Order 21 of C.P.C. which deals with removal of the obstruction for delivery of possession in execution of a decree for immovable property. For better appreciation, Rule 35 may be extracted hereunder : "35. Decree for immovable property- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession." 12. As could be seen, sub-rule (3) of Rule 35 empowers the Court, through its officers to remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession where the person in possession is bound by such decree. 13. In the case on hand, admittedly, the judgment-debtor/petitioner herein is in possession and the decree-holder alleged that she obstructed delivery of possession. The Court is empowered to direct removal of such obstruction under sub-rule (3) of Rule 35 of Order 21 of C.P.C. and it cannot be confused with the power conferred under Rules 95 to 98 of Order 21 of C.P.C. 14. The powers conferred on the executing court under Rule 35 (3) of Order 21 and Rules 95 to 98 of Order 21 of C.P.C. are quite different from each other governing two different situations. A plain reading of Order 21 Rules 95 & 96 of C.P.C. shows that the same deal with delivery of property in occupation of the judgment-debtor and tenant respectively in execution of a decree for payment of money by attachment and sale of immovable property of the judgment- debtor for satisfaction of the decree. In such execution proceedings, in case of resistance or obstruction by any person for obtaining possession of the immovable property, the holder of a decree is entitled to make an application to the Court under Rule 97 complaining of such resistance or obstruction and the Court may pass appropriate orders under Rule 98 directing that the applicant be put in possession. Such order made under Rule 98 shall have the same force and be subject to the same conditions as to an appeal as if it were a decree as per Rule 103. 15. As expressed above, since the impugned order directing the Station House Officer to provide police aid to the Bailiff to break open the lock of the schedule house, passed in E.A.No.187 of 2007 in execution of a decree for delivery of an immovable property can be traced only to the power conferred under Rule 35 (3) but not Rule 98 of Order 21 of C.P.C., there is absolutely no substance in the contention of the learned Counsel for the respondent that the present Revision Petition under Article 227 of the Constitution of India is not maintainable. 16. 16. However, the learned Counsel for the respondent further contended that since E.A.No.238 of 2007 to set aside the ex parte order in E.P.No.97 of 2006 was filed beyond 30 days prescribed under Order 21 Rule 106 (3) of C.P.C., the same is liable to be dismissed in limini as barred by time. The learned Counsel while pointing out that Section 5 of the Limitation Act is not applicable to any application made under Order 21 of C.P.C., submitted that the question of condonation of delay under Section 5 of the Limitation Act does not arise and therefore the interference by this Court is not at all warranted. 17. The specific allegation of the decree-holder/respondent herein is that whereas the judgment-debtor was set ex parte in E.P. on 23.1.2007 the application to set aside the ex parte order was filed on 14.6.2007, beyond 30 days period prescribed under Rule 106(3) of Order 21 of the Code of Civil Procedure. 18. Order 21, Rule 106, which deals with setting aside the orders passed ex parte in Execution proceedings under Rule 23(1) and Rule 105(2) of Order 21 of C.P.C. may be extracted hereunder: 106. Setting aside orders passed ex parte, etc., (1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub- rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party. (3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order." 19. (3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order." 19. As could be seen from sub-rule (3), it is true that an application to set aside the ex parte order shall be made within 30 days from the date of the order. However, sub-rule (3) further provides that in case of an ex parte order where notice was not duly served, the application can be made within 30 days from the date when the applicant had knowledge of the order. 20. Thus, it is clear that it is always open to the party who suffered an ex parte order in execution proceedings to plead and establish that no notice was served on him and the application to set aside was filed within 30 days from the date when he had knowledge of the order. 21. In the instant case, it is pleaded by the judgment-debtor/revision petitioner that she came to know about the order in the execution petition only on 7.6.2007, when the Bailiff came to the suit house to take vacant possession, and immediately thereafter the application to set aside was filed on 14.6.2007 i.e., within 30 days from the date of knowledge. Whether the said plea is sustainable is the subject-matter of enquiry that may be conducted in E.A.No.238 of 2007 on the basis of the evidence that may be produced by the parties and, at this stage, it cannot be concluded that the application is barred by limitation. 22. In this Revision Petition, the impugned order made in E.A.No.187 of 2007 is assailed only on the ground that the Court below committed an error in exercise of its jurisdiction in granting police aid to the Bailiff while the applications made by the judgment-debtor to set aside the ex parte decree in the Suit as well as ex parte order in the Execution Petition are pending before the same Court. The fact that such applications are still pending on the file of the Court below is not disputed by the respondent. The fact that such applications are still pending on the file of the Court below is not disputed by the respondent. In the circumstances, I am of the opinion that the Court below ought not to have allowed E.A.No.187 of 2007 filed by the decree-holder for police aid to the Bailiff for delivery of schedule house. The said order in E.A.No.187 of 2007 virtually rendered the applications to set aside the ex parte decree in the suit and ex parte order in the execution petition infructuous. Hence, the order impugned in this Revision Petition is vitiated and suffered from a patent error in exercise of jurisdiction vested under law warranting interference by this Court. 23. Accordingly, the Order under Revision dated 02.07.2007 in E.A.No.187 of 2007 is hereby set aside and the Revision Petition is disposed of with a direction to the Court below to consider and dispose of the applications filed by the petitioner herein to set aside the ex parte decree in the suit and the ex parte order in the execution petition (I.A.No.973 of 2007 and E.A.No.238 of 2007), following due process of law and then take up further proceedings. Such exercise shall be completed as expeditiously as possible preferably within a period of four weeks from the date of receipt of this order. No costs.