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2009 DIGILAW 162 (AP)

B. Krishna Reddy v. M. D. Sudheendra Rao

2009-03-16

P.S.NARAYANA

body2009
Judgment : 1. 1. This Court on 27-2-2009 ordered urgent notice. 2. 2. Sri K.Rathangapani Reddy, the learned Counsel representing the 1st respondent/contesting respondent entered appearance. 3. 3. Heard Sri Hanumantha Rayudu, the learned Counsel representing the Revision Petitioner and Sri Rathangapani Reddy, the learned Counsel representing the 1st respondent. 4. 4. Sri Hanumantha Rayudu, the learned Counsel representing the Revision Petitioner/1st defendant would maintain that the learned Principal Senior Civil Judge, Kurnool totally erred in keeping I.A.No.385/2008 pending which was filed to set aside exparte decree made in O.S.No.33/2005 even though the application for condonation of delay was allowed on 14-3-2008. The Counsel also would maintain that the learned Judge ought to have seen that in spite of pendency of I.A.No.385/2008, the 1st respondent is further proceeding with the execution of the decree made in O.S.No.33/2005 and if he 1st respondent is permitted to further proceed with the execution of the decree, the very purpose of filing of an application to set aside the exparte decree would be defeated. The Counsel also would further maintain that the learned Judge ought to have appreciated that since the petitioner had not received any notice in E.P.No.295/2005 in spite of furnishing of the correct address of the petitioner in I.A.No.385/2008, the petitioner is under the bonafide impression that no E.P. proceedings would be carried out during the pendency of I.A.No.385/2008. The Counsel also incidentally pointed out to Order V Rule 17, Order 5 Rule 19 and 20 of the Code of Civil Procedure, in short referred to as "Code" for the purpose of convenience. The Counsel further pointed out to Order XXI Rule 54 and Order XXVI of the Code and would maintain that in the peculiar facts and circumstances, suitable directions are to be issued in this regard under Article 227 of the Constitution of India. The Counsel also relied upon certain decisions to substantiate his submissions. 5. 5. On the contrary, Sri Rathangapani Reddy, the learned Counsel representing the 1st respondent/plaintiff had taken this Court through the historical background of the litigation and how the delaying tactics are being adopted by the Revision Petitioner. The Counsel also explained the nature of the litigation and further would maintain that in the peculiar fact-situation, this is not a fit case to be interfered with under Article 227 of the Constitution of India and hence the Civil Revision Petition to be dismissed. 6. The Counsel also explained the nature of the litigation and further would maintain that in the peculiar fact-situation, this is not a fit case to be interfered with under Article 227 of the Constitution of India and hence the Civil Revision Petition to be dismissed. 6. 6. Heard the Counsel. 7. The 1st respondent herein as the plaintiff instituted the suit O.S.No.33/05 on the file of Principal Senior Civil Judge, Kurnool against the Revision Petitioner and the 2nd respondent in the present Civil Revision Petition for recovery of amount. It is the case of the Revision Petitioner that he was doing real estate business and incurred heavy loss and he was under serious threat from various creditors and apprehending danger to his life. The Revision Petitioner approached this Court by filing I.A.No.4927/2004 praying for suitable directions to the police and taking undue advantage of the absence of the petitioner in Kurnool town, the 1st respondent filed the suit and obtained exparte decree on 6-7-2005. Subsequent thereto, the 1st respondent filed E.P.No.295/2005 for execution of the decree made in O.S.No.33/05 aforesaid. While so, it is stated by the petitioner that the petitioner visited Kurnool on 16-8-2007 to see his family members and found that they were not residing there and on enquiry he came to know that the 1st respondent filed the suit and obtained exparte decree and also filed E.P. for sale of properties. Immediately, the petitioner filed an application to set aside the exparte decree along with an application to condone delay wherein he had furnished his residential address at Cuddapah. The learned Judge allowed the application for condonation of delay on payment of Rs.750/- which was duly paid and then the application to set aside the exparte decree was numbered as I.A.No.385/2008. It is also stated that the 1st respondent received notice in I.A.No.385/2008 and filed counter and hence he is aware of the new address of the petitioner, but in spite of knowledge of the new address, the 1st respondent is continuing to furnish the same old address for the purpose of service of notice and manage to get an endorsement of refusal and thus taking advantage of the same, the 1st respondent is trying to further proceed with the execution proceedings. In such circumstances, praying for appropriate directions, this Civil Revision Petition had been preferred under Article 227 of the Constitution of India. 7. 8. In such circumstances, praying for appropriate directions, this Civil Revision Petition had been preferred under Article 227 of the Constitution of India. 7. 8. Thelearned Counsel representing the Revision Petitioner placed strong reliance on the decision of the Full Bench of the Madras High Court in Parasurama Vs. Appadurai AIR 1970 Madras 271 (F.B.) wherein at paras 10 and 11 the Full Bench observed : "At the outset we have to dispose of a preliminary point made by Sri V.V. Raghavan, the learned Counsel for the second respondent-auction purchaser, that in respect of such an application in execution proceedings, Order V, Rule 19 would not in terms apply, that therefore the Court was not bound to see whether the provisions had been strictly complied with, and that it was enough if it as satisfied that the provisions had been substantially complied with. In support of this contention the learned Counsel relies on two decisions, one of the Privy Council in Thakur Prasad Vs. Sheikh Fakir Ullah, 17 All.106 (P.C.) and Bhusayya Vs. Ramakrishnayya, 1963-2 S.C.R. 499 = AIR 1962 S.C. 1886 at 1892. These decisions have interpreted S.141 C.P.C. 1908 and the corresponding S.647 C.P.C. of 1882. Section 141 says that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. What is pointed out in these decisions is that, in respect of execution proceedings, there is Order XXI which provides a detailed procedure, and consequently the general procedure prescribed else wherein the Code cannot be made applicable to execution proceedings. But this contention of the learned Counsel overlooks the provisions of O.XLVIII, Rule 2 which says that "all orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons". There is no provision in Order XXI as to the manner of service of the notice under Order XXI, Rule 66 and hence O.XLVIII Rule 2 will apply, which means that the provisions of Order V relating to the manner of service will apply even to the notice issued under Order XXI, Rule 66. Hence, the provisions of Order V, Rule 19 will apply. Hence, the provisions of Order V, Rule 19 will apply. In answering the reference about the effect of the non-compliance with the provisions of Order V, Rule 19, we must remember that we are not answering the question interest abstract, but in relation to an application to have the execution sale declared void. We will have to remember further that the question has been raised by the appellant in order to contend that Article 166 of the Limitation Act of 1908, prescribing a shorter period of Limitation of thirty days from the date of the sale did not apply to him and that consequently the residuary Article 181 applied. This being the context in which the effect of the non-compliance with the provisions of Order V, Rule 19 has to be considered, it will be necessary to have an idea as to how the appellant can contend that Article 166 would not apply. If Order V, Rule 19 would not apply, if Order V, Rule 19 was not strictly complied with. When Article 166 of the Limitation Act of 1908 or the corresponding Article 127 of the new Limitation Act of 1963 prescribes a period of thirty days from the date of the sale for making the application to set aside the execution sale, it assumes that the Judgment-debtor knew of the date of the sale, either actually or constructively and would therefore be in a position to make the application within thirty days of the date of the sale. If he was personally served with the notice under Order XXI, R.66, there could be no difficulty in fixing him with knowledge of the date of the sale; even if he chooses to be absent from the Court in response to the notice under Order XXI, Rule 66, the law will say that it was his duty to be present and that he had constructive notice of the date of the sale. But it may be not possible always to effect personal service of notice of the sale (meaning thereby the notice under Order XXI, Rule 66). Indeed, if personal service were to be insisted on the Judgment-debtor, he might evade personal service and a premium could be put on such evasion. But it may be not possible always to effect personal service of notice of the sale (meaning thereby the notice under Order XXI, Rule 66). Indeed, if personal service were to be insisted on the Judgment-debtor, he might evade personal service and a premium could be put on such evasion. That is why the law has prescribed under Order V, Rule 19 that even if the notice is served by affixture, the Court could declare that he has been duly served or alternatively the Court could order substituted service under Order V, Rule 20. Ineither case, the Court is enabled to proceed further despite the absence of personal service and despite the possible absence of the Judgment-debtor. In such a case, the law will say that the Judgment-debtor had constructive notice and would expect the Judgment-debtor to file the application within thirty days from the date of the sale. But, since it is possible that, in spite of the declaration of due service of the Court under O.V R.19 or of substituted service under O.V Rule 19 or of substituted service under O.V R.20, the Judgment-debtor may not have actually known of the date of the sale, it should be open to him to satisfy the Court that actually he did not have notice of the sale and did not even otherwise know of the sale and that the application of Article 166 would take away his valuable right. At this stage it is pertinent to recall the observations of their Lordships of the Supreme Court in Sangram Sing Vs. Election Tribunal, Kotah, 1955-2 S.C.R. 1 at p.9 = ( AIR 1955 S.C. 425 at p.429) - "Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, whatever that is reasonably possible, in the light of that principle". Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, whatever that is reasonably possible, in the light of that principle". But apart from the above right of the Judgment-debtor himself it should be clear that in order that he executing Court should strictly comply with the provisions of Order V, Rule 19 (if it wants to hold under that provision that there has been due service). The imperative nature of the provisions of Order V, Rule 19 should therefore be obvious. This is also borne out by the use of the word "shall" in the two parts of Order V, Rule 19, as contrasted with the use of the word "may" in the rule. Where the Legislature has used the words "shall" and "may" in the same provision, that itself is an indication, that the word "shall" has been used in a mandatory sense. That has been pointed out by their Lordships of the Supreme Court in Jamatrai Vs. State of Maharashtra AIR 1968 S.C. 178 construing S.540, Crl. P. Code. That runs – "Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person or a witness, or examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case". Their Lordships pointed out – "The section is in two parts. The first part gives a discretionary power, but the latter part is mandatory. The use of the word 'may' in the first part and of the word "shall" in the second firmly establishes this difference". 1. 9. As referred to above, strong reliance was placed on Order V Rules 17, 19 and 20 and also Order 21 Rule 54 of the Code aforesaid and elaborate submissions had been made in this regard. 2. 10. On a careful analysis of the facts of the case and also the series of events and further after tracing the historical background of the litigation, this Court is satisfied that the 1st respondent/plaintiff/Decree Holder is further proceeding with the execution lawfully. 2. 10. On a careful analysis of the facts of the case and also the series of events and further after tracing the historical background of the litigation, this Court is satisfied that the 1st respondent/plaintiff/Decree Holder is further proceeding with the execution lawfully. It is not as though the Revision Petitioner is remediless and in the peculiar fact-situation, the petitioner is at liberty to move appropriate application in this regard before the same learned Judge, but in stead of doing so, the Revision Petitioner had chosen to approach this Court. This Court is not inclined to issue any suitable directions under Article 227 of the Constitution of India, but however, liberty is given to the Revision Petitioner to move appropriate application if the Revision Petitioner is so advised in this regard. 3. 11. With the above observation, the Civil Revision Petition is disposed of. No costs.