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2011 DIGILAW 1040 (KER)

Appu S/o. Chellappan v. Surendra Swami

2011-10-12

THOMAS P.JOSEPH

body2011
Judgment : The questions raised for a decision in this proceeding are whether, as in the case of an order as provided under Rule 6(1)(a) of Order IX of the Code of Civil Procedure (for short, “the Code”) that the suit be heard exparte the executing court is required to pass an order that the application be heard exparte on the judgment debtor not appearing in spite of service of notice and whether the period of limitation prescribed under Sub-rule (3) of Rule 106 of Order XXI of the Code is to be reckoned from the date on which judgment debtor is declared absent or, the executing court passes order on any application, in the execution proceeding in the absence of the judgment debtor? 2. A resume of the facts necessary for the decision of the questions are: Respondent obtained an exparte decree for recovery of money from the petitioner in O.S.No.47 of 2000 of the court of learned Sub Judge, Neyyattinkara and in the year, 2001 he launched execution against petitioner by filing E.P.No.9 of 2001. Respondent requested personal execution against petitioner. The execution court passed an order that petitioner has no means hence no warrant could be issued as provided under Rule 40 of Order XXI of the Code. Respondent challenged that order in this Court in C.R.P.No.521 of 2004 and by order dated 23.11.2004 this Court confirmed the finding of the executing court but with a rider that in case petitioner come by means, it is open to the respondent to proceed against him personally. Thereafter respondent got the amount in the provident fund of petitioner attached. Petitioner challenged that order in this Court W.P.(C) No.38234 of 2007. The Writ Petition was allowed, the order was set aside and the matter was remitted for fresh decision. The executing court held that the amount in the provident fund of petitioner could not be attached in view of the bar under Sec.60 of the Code. Respondent requested to issue notice to the petitioner under Rule 37 of Order XXI of the Code alleging that petitioner has acquired means sufficient to satisfy the decree but has willfully not paid the amount due. On that request notice was issued to the petitioner directing him to appear in the executing court on 05.02.2010. Petitioner did not appear in the executing court on that day though he was served with the notice. On that request notice was issued to the petitioner directing him to appear in the executing court on 05.02.2010. Petitioner did not appear in the executing court on that day though he was served with the notice. Executing court passed order on the same day declaring petitioner exparte. Petitioner also filed E.A.No.156 of 2010 to set aside the exparte order against him. Petitioner also filed E.A. No.296 of 2010 for review of the order dated 05.02.2010 declaring him exparte in the execution proceeding and E.A.No.297 of 2010 to condone the delay. In the meantime petitioner filed Ext.P11, objection to Ext.P7, affidavit of the respondent as regards his means. The executing court by Ext.P12, order dated 14.06.2010 dismissed E.A.No.156 of 2010 while E.A.Nos.296 and 297 of 2010 were dismissed as per Exts.P13 and P14, orders dated 27.09.2010. That was followed by the executing court passing Ext.P15, order the same day that warrant be repeated to the petitioner for his arrest with Police assistance. Exts.P12 to P15, orders are under challenge. 3. Learned counsel for petitioner contends that unlike Rule 6(1)(a) of Order IX of the Code where the court is empowered to pass an order that the suit be heard exparte when it is satisfied that summons has been duly served on the defendant but he does not appear, Sub-rule (3) of Rule 105 of Order XXI does not empower the executing court to pass an order that the application be heard exparte. Instead, the said provision only requires the court to hear the application (in execution) exparte and pass such orders as it thinks fit if it is satisfied that in spite of notice the opposite party does not appear. According to the learned counsel, this is evident from Sub-rule (3) of Rule 105 of Order XXI and Rule 6(1)(a) of Order IX of the Code. It is the further contention of learned counsel that therefore, the period of limitation prescribed under Sub-rule (3) of Rule 106 of Order XXI of the Code is not with respect to the order setting the judgment debtor exparte in the execution proceeding but, with respect to the order passed in the execution proceeding in the absence of the judgment debtor. Learned counsel has referred me to the Object and Reasons for amendment of Rule 6 of Order IX of the Code. Learned counsel has referred me to the Object and Reasons for amendment of Rule 6 of Order IX of the Code. It is argued that if the executing court could not have passed order on 05.02.2010 declaring petitioner/judgment debtor exparte, it must be taken that Ext.P15, order was passed after petitioner entered appearance in the executing court and preferred Ext.P11, objection. In that situation, the executing court was bound to consider Ext.P11, objection preferred by petitioner and pass order on merit. Executing court could not pass Ext.P15, order disregarding the presence of petitioner in the executing court and Ext.P11, objection. It is also argued that at any rate the executing court was not correct in rejecting the request of petitioner to set aside order dated 05.02.2010 since as aforesaid, no question of passing an order declaring the judgment debtor exparte in the execution proceeding arose. 4. Learned counsel for respondent would contend that the executing court has passed an order on 05.02.2010 declaring petitioner exparte and hence the period of limitation prescribed by Sub-rule (3) of Rule 106 of order XXI of the Code must be reckoned from 05.02.2010. Ext.P8, application was preferred only on 29.03.2010, ie. Beyond 30 days from 05.02.2010 and hence barred by limitation. It is argued that E.A.No.156 of 2010 was not maintainable since Sec.5 of the limitation Act has no application to proceedings in execution. In that view of the matter the executing court was correct in dismissing E.A.No.296 of 2010 for review of the order dated 05.02.2010. It is pointed out by the learned counsel that the order to issue warrant of arrest was passed on 30.06.2010 and so far as that order is not challenged, challenge to Ext.P15, order whereby warrant of arrest was repeated cannot be accepted. 5. So far as the last limb of argument advanced by the learned counsel for respondent is concerned, it is fairly conceded before me that on 30.06.2010 the executing court had passed an order issuing warrant of arrest to the petitioner. It is to be noted that petitioner had appeared in the executing court on 29.03.2010 and filed E.A.No.156 of 2010 to set aside the order dated 05.02.2010 declaring him exparte. In short, it is after petitioner appeared in the executing court on 29.03.2010 that the said court passed the order dated 30.06.2010 issuing warrant of arrest to the petitioner. It is to be noted that petitioner had appeared in the executing court on 29.03.2010 and filed E.A.No.156 of 2010 to set aside the order dated 05.02.2010 declaring him exparte. In short, it is after petitioner appeared in the executing court on 29.03.2010 that the said court passed the order dated 30.06.2010 issuing warrant of arrest to the petitioner. In fairness, it is not disputed by learned counsel for respondent also that at the time the executing court passed order on 30.06.2010, petitioner was not given an opportunity to adduce evidence presumably because of the order dated 05.02.2010 setting petitioner exparte. Though there is no challenge in this proceeding to the order dated 30.06.2010 I am inclined to consider the correctness of that order in this proceeding since the said order was passed after petitioner appeared in the executing court and as the learned counsel on both sides say and the records reveal that petitioner was not given opportunity to adduce evidence. 6. Coming back to the questions raised for a decision, it is relevant to refer to Rule 6 of Order IX and Rules 105 and 106 of order XXI of the Code. Rule 6 of Order IX of the Code deals with the procedure when only the plaintiff appears when the suit is called on for hearing. Sub-rule (1)(a) of Rule 6 of Order IX which alone is relevant here, states: “When summons duly served:-If it is proved that the summons was duly served, the court may make an order that the suit be heard exparte”. Rule 6(1)(a) of Order IX contemplates an order being passed by the court that the suit be heard exparte. Under Rule 7 of Order IX, where the court has adjourned the hearing of the suit exparte, the defendant may, at or before such hearing, appear and assign good cause for his previous non-appearance and request to be heard in answer to the suit as if he had appeared on the day fixed for his appearance. On assigning good cause for such non-appearance, the court has to set aside the order (passed under Rule 6(1)(a) of Order IX). If the defendant does not appear and assign good cause for his previous non-appearance, the court can decide the suit exparte. On assigning good cause for such non-appearance, the court has to set aside the order (passed under Rule 6(1)(a) of Order IX). If the defendant does not appear and assign good cause for his previous non-appearance, the court can decide the suit exparte. If a decree, exparte, is passed, the defendant can request the court to set it aside in the manner provided under Rule 13 of order IX. 7. Reference can also be made to the relevant provisions of the Object and Reasons for amendment of Rule 6 of Order IX of the Code. In the statement of Objects and Reasons, it is stated: “Clause 62- Sub-clause (iv).- Rule 6 empowers the Court to proceed ex parte where it is proved that the summons was duly served. The rule does not however make it clear whether the Court has a power to pass a decree, if it thinks fit, on the basis of the pleadings without formal evidence. Having regard to the paramount need to reduce delay the rule is being amended to provide for the passing of a decree even in the absence on oath”. The above statement as also Rules 6(1)(a) and 13 of Order IX make it clear that so far as the trial court is concerned, there are two stages when it finds that in spite of due service of summons on the defendant, only the plaintiff appears – ordering that the suit be heard exparte and a judgment and decree deciding the suit in his absence. 8. Reference can be made to Rules 105 and 106 of Order XXI of the Code as well. Rule 105 deals with hearing of applications. I am presently concerned with Sub-rule (3) of Rule 105 of Order XXI which reads. “(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.” While Sub-rule (1)(a) of Rule 6 of Order IX states that the court may make an order that the suit be heard exparte. Sub-rule (3) of Rule 105 of Order XXI only says that the court may hear the application exparte. Sub-rule (3) of Rule 105 of Order XXI only says that the court may hear the application exparte. It is not necessary for the executing court to make an order that the application be heard exparte Rule 106 of Order XXI deals with setting aside orders passed exparte. What is relevant in this proceeding is Sub-rule (3) which is as under: “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 order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.” It, therefore leaves me in no doubt that the order contemplated under Sub-rule (3) of Rule 105 of Order XXI of the Code is not an order declaring that the application be heard exparte (in the absence of the opposite party) but, an order passed on the application on which notice was given to the opposite party but he remained absent. Sub-rule (3) of Rule 106 must therefore, relate not to any order (if passed) declaring the judgment debtor exparte in the execution proceeding but to the order the executing court passes on the application in the absence of the judgment debtor under Sub-rule (3) of Rule 105. The said provision does not contemplate an order that the application be heard exparte – it is sufficient that if in spite of service of notice the judgment debtor does not appear, the executing court recorded the fact of his absence. Therefore the period of limitation prescribed by Sub-rule (3) of Rule 106 of Order XXI of the Code must be reckoned not from the date on which the opposite party was recorded absent or even an order declaring him exparte in the execution proceeding but from the date on which order was passed on the application in the absence of the opposite party in spite of his being notified on that application. 9. Reference can also be made to the decision of this Court in C.L. Cleetus v. South Indian Bank Ltd. and another (AIR 2007 Kerala 301). There, in paragraph 6 it is held that Rule 105 (of the Order XXI of the Code) deals with the hearing of applications which can either be the execution petition or an application in the execution petition. There, in paragraph 6 it is held that Rule 105 (of the Order XXI of the Code) deals with the hearing of applications which can either be the execution petition or an application in the execution petition. The Rule says that if the opposite who has been issued with notice fails to appear (on the application regarding which notice is served) the court shall hear the application exparte and proceed to pass any order it deems fit. Those orders could be orders finally disposing of the execution petition or orders deciding any specific issue, for eg., regarding executability of the decree in response to a notice under Rule 22 of Order XXI or arrest pursuant to a notice under Rule 37 or even settlement of draft proclamation decided in response to a notice under Rule 66 of Order XXI. In paragraph 7 of the said decision it is observed that an order setting the judgment debtor exparte cannot preclude him from participating in the further proceedings in execution petition on matters not concluded by the exparte order. 10. Position can be illustrated thus: notice may have been issued to the judgment debtor under Rule 22 of Order XXI of the Code as to executability of the decree. In spite of service of notice, judgment debtor may remain absent. On the judgment debtor remaining absent the court may pass order as to the executability of the decree. That is, the order referred to in Sub-rule (3) of Rule 105 of Order XXI and which Sub-rule (3) of Rule 106 of Order XXI allows to be set aside at the instance of the judgment debtor on an application filed within 30 days from the date on which the court ordered that the decree is executable. Assuming that judgment debtor does not seek to set aside the order as to the executable. Assuming that judgment debtor does not seek to set aside the order as to the executability of the decree, the said order does not preclude the judgment debtor from appearing in the executing court and taking part in the subsequent stage of the execution proceeding. That is the scheme of proceedings which could be discerned from Rules 105 and 106 of Order XXI. 11. That is the scheme of proceedings which could be discerned from Rules 105 and 106 of Order XXI. 11. I found that Sub-rule (3) of Rule 105 or Order XXI does not require the executing court to make an order that the application be heard exparte (in the absence of the opposite party to whom notice on the application was given) and that the executing court need only record absence of opposite party in spite of service of notice on the application filed in the execution proceeding and proceed to pass order on the application as it thinks fit. In that view of the matter, it was not necessary for the executing court and, it was not warranted under law as well to pass an order on 05.02.2010 declaring petitioner (judgment-debtor) exparte. Nor did not that order preclude petitioner (judgment debtor) from appearing in the same proceeding so far no final order was passed by the executing court. 12. As aforesaid, though an exparte order was passed on 05.02.2010, even as conceded by learned counsel for respondent the initial order issuing warrant of arrest was passed on 30.06.2010. But petitioner had appeared in the proceeding for person execution on 29.03.2010. Therefore, without reference to the petitioner and giving him an opportunity to prefer objection and adduce evidence in support of the contentions he has raised regarding means the executing court was not correct in passing the order on 30.06.2010 as if it is an exparte order. The said order cannot stand. 13. Coming to the correctness of Exts.P12 to P15, order I found that the executing court was not required to pass an order declaring petitioner (judgment debtor) exparte. Hence it was not necessary for petitioner to file E.A.No.156 of 2010 to set aside the ‘exparte order’ dated 05.02.2010. E.A.No.297 of 2010 to condone the delay in filing E.A.No.156 of 2010 or even E.A.No.296 of 2010 to review the order on E.A.No.156 of 2010. Since petitioner appeared in the executing court on 29.03.2011, he ought to have been allowed to take part in the proceeding which culminated in the order dated 30.06.2010 and Ext.p15, order dated 27.09.2010. In that view of the matter I am inclined to interfere with the order dated 30.06.2010 and Exts. P12, P14 and P15, orders. 14. Since petitioner appeared in the executing court on 29.03.2011, he ought to have been allowed to take part in the proceeding which culminated in the order dated 30.06.2010 and Ext.p15, order dated 27.09.2010. In that view of the matter I am inclined to interfere with the order dated 30.06.2010 and Exts. P12, P14 and P15, orders. 14. Having regard to the fact that though petitioner was served on the application for personal execution, but he did not appear in the executing court on 05.02.2010 and instead, appeared only on 29.03.2010, and taking into account the chequered career of the execution proceeding I am inclined to direct that petitioner shall deposit `10,000/-(Rupees ten thousand only) in the executing court for payment to the respondent within one month from the date notified for delivery of a copy of this judgment. There is no reason why the amount deposited by the petitioner in the executing court pursuant to the order dated 25.11.2010 passed by this Court should not be allowed to be withdrawn by the respondent. But I make it clear that in deciding the issue regarding means of petitioner, deposit made and being made pursuant to this judgment shall not be taken into account by the executing court. Resultantly this Original Petition is allowed. Exts.P12, P14 and P15, orders as also the order dated 30.06.2010 issuing warrant of arrest to the petitioner are set aside. Executing court is directed to decide the issue regarding means of petitioner in the light of Ext.P11, objection preferred by him and after giving opportunity to both sides to adduce evidence. It is directed that petitioner shall deposit a sum of `10,000/- (Rupees Ten thousand only) in the executing court for payment to the respondent within one month from the date notified for delivery of a copy of this judgment to the petitioner failing which it will be open to the executing court to strike of the contention raised by petitioner in Ext.P11. The amount deposited could be withdrawn by the respondent and adjusted in the amount payable under the decree. It is directed that in deciding the means of petitioner the fact of those deposits shall not be taken into account by the executing court.