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2010 DIGILAW 479 (MAD)

Sundari v. Swarnamma & Others

2010-02-03

R.S.RAMANATHAN

body2010
Judgment :- The plaintiff in O.S.No.644 of 1977, on the file of the District Munsif Court, Kuzhithurai is the revision petitioner. 2. In the suit in O.S.No.644 of 1977, a preliminary decree was passed on 08.02.1983. The same was confirmed in S.A.No.206 of 1994 and the SLP was filed against that and that was also dismissed on 010. 2004. Thereafter, final decree was passed on 03.09.2009. Therefore, the petitioner filed the application for execution of final decree in E.P.No.118 of 2009 making the respondents as parties to the proceedings. The learned District Munsif ordered notice to the respondents and also to the caveator through court and posted the matter on 05.02.2010 and the issue of notice to respondents is challenged in this revision. 3. Mr. K.N. Thambi, learned counsel for the petitioner submitted that under the provisions of CPC no notice is contemplated, when E.P. is filed within a period of two years and as per CPC, notice is contemplated under Order 21 Rule 16 and 22, Order 5 Rule 1 of CPC and Order 41 Rule 5. Except the aforesaid provisions the Courts have no power to order notice to the respondents. He further submitted that as per Order 21 Rule 22, when the Execution petition is filed after a period of two years from the date of decree, notice has to be given to the respondents and in this case, E.P. was filed within two years from the date of decree passed by the final decree and hence, the lower court erred in issuing notice and that is liable to be quashed. 4.According to the learned counsel for the petitioner, the court has no jurisdiction to issue notice and the court had exceeded its jurisdiction by ordering notice in the execution petition filed by the petitioner and therefore, the order of lower court in issuing notice can be interfered with the under Article 227 of the Constitution of India. He relied upon the judgment, reported in 2006(4) MLJ 190 (Hazrath Imam Hussain Wakf, rep. He relied upon the judgment, reported in 2006(4) MLJ 190 (Hazrath Imam Hussain Wakf, rep. by its Muthavalli Mr.Aga Zulfikar Ali @ Afzal Aga, Chennai v. Nayeema Adib) to the effect that in the event of an application for execution being filed within two years from the date of the decree, the execution Court is fully empowered to secure possession to be delivered to the decree-holder from the person in possession who is bound by the decree and who refused to vacate the property and there is no necessity for the court to issue notice to the judgment-debtor. Therefore, he contended that there is no necessity for the lower court to issue notice and by ordering notice, the trial will be prolonged and for more than 20 respondents, notice to be served. He further submitted that the Presiding Officer is biased as the husband of the petitioner, who is a Senior Counsel at Nagercoil wrote a letter to the Secretary of the Bar Association, Kuzhithurai as against the Presiding Officer of the Principal District Munsif Court Kuzhithurai, and therefore he is biased and only on the basis of the bias, he has issued notice. 5.He further relied upon the judgment reported in AIR 2003 Supreme Court 3044 (Surya Dev Rai V. Ram Chander Rai and others) Wherein it is stated that "the power under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction, which it does not have, or has failed to exercise a jurisdiction, which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to interfere in such matter by invoking Article 227 of the Constitution of India." 6. According to me, the submission made by the learned counsel for the petitioner is not applicable to the facts of the case. No doubt, as per the provisions of CPC, as stated by the learned counsel for the petitioner, notice has to be issued only in such contingency as stated in those provisions. But, there is no prohibition under the CPC that when E.P. is filed within two years, notice should not be given. No doubt, as per the provisions of CPC, as stated by the learned counsel for the petitioner, notice has to be issued only in such contingency as stated in those provisions. But, there is no prohibition under the CPC that when E.P. is filed within two years, notice should not be given. A reading of Order 21 Rule 22 makes it clear that when application for execution is filed after two years, after the date of the decree, the court has to issue notice to the judgment debtor. Further, as per the High Court amendment Rule 22 namely, sub clause 2 even when the E.P. is filed after two years, the court has got power to pass order without issuing notice, stating the reasons for that, if the Court considers that issuance of notice would cause to some delay and to meet the ends of justice. Therefore, a reading of Order 21 Rule 22 would make it clear that a notice has to be issued in a execution petition filed after two years of passing of the decree, but there is no prohibition for issuing notice in case where E.P. is filed within two years. 7. According to me, it is the elementary principles of law that no party should be made to suffer without giving opportunity and principle of natural justice requires that other side should be heard and hence no prejudice will be caused to the other side while ordering notice, when there is no prohibition for the Court in issuing notice to the respondents. 8. It is further contented by the learned counsel for the petitioner that the Presiding Officer is having a bias against the petitioner as the husband of the petitioner has given a complaint against the Presiding Officer and the learned counsel also relied upon the judgment of the Honble Supreme Court, reported in AIR 1965 Supreme Court 1303(A.P.S.R.T CORPN. 8. It is further contented by the learned counsel for the petitioner that the Presiding Officer is having a bias against the petitioner as the husband of the petitioner has given a complaint against the Presiding Officer and the learned counsel also relied upon the judgment of the Honble Supreme Court, reported in AIR 1965 Supreme Court 1303(A.P.S.R.T CORPN. v. SATYANARAYANA TRANSPORTS) In that judgment it has been held that " Thus, if a person has a pecuniary interest in the case brought before him, or is hostile to a party whose cause he is called upon to try, that would introduce the infirmity of bias and would disqualify him from trying the cause." Accepting the allegation that by reason of the complaint given by the husband of the petitioner against the Presiding Officer, he became inimical to the petitioner, no proof has been filed that the Presiding Officer has acted in a manner hostile to the petitioner. Further, if the petitioner has got any apprehension that the presiding officer is biased towards the petitioner, it is open to the petitioner, to approach the District Court for transferring the case before some other court. By granting adjournment, it cannot be presumed that the Presiding Officer is biased towards the petitioner. Further, the Honble Supreme Court has held in AIR 2003 Supreme Court 3044, which has been extracted above. 9. In this case, according to me, there is no erroneous exercise of jurisdiction or failure to exercise the jurisdiction which warrants interference. The order of issue of notice to the respondents cannot be set to be an erroneous assumption of jurisdiction and according to me, the lower court has issued notice in accordance with principle of natural justice and that cannot be found fault with. 10. With the above observation, this Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed.