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2013 DIGILAW 772 (PAT)

Sanjay Kumar v. Raghunandan Bhagat

2013-07-08

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned senior counsel for the petitioner and learned counsel for the respondent. 2. The petitioner is aggrieved by the order dated 27.09.2012 passed by learned Civil Judge 1st Senior Division, Madhepura in Title Execution Case No. 09/2009 whereby the executing court rejected the petition filed by the petitioner on 13.09.2012 enabling him to file a show cause as required under Order 21 Rule 22 of the Code of Civil Procedure (in short “the Code”). 3. Learned senior counsel for the petitioner has questioned the legality of the impugned order on the ground that it was mandatory for the court below to have ensured service of notice upon the petitioner/ judgement- debtor under Clause 1 of Order 21 Rule 22 of the Code in view of the fact that the execution case was filed two years after the so-called compromise decree. It has been submitted that the court below was not justified in rejecting the petitioner’s prayer for filing a detailed show cause as contemplated under Order 21 Rule 22 of the Code. 4. From the pleadings of the present application under Article 227 of the Constitution of India, it appears that a Title Suit No. 159/2006 was filed by the respondent claiming eviction of the petitioner from the suit land. The said suit resulted into compromise/ understanding between the parties. A joint petition of compromise was filed on 27-02-2007 and, accordingly, an order was passed on the same date and a decree was passed on 08-03-2007. The said compromise is annexure-5 to the present application. On perusal of the said compromise petition, it would appear that the petitioner agreed that he would remain as tenant for next 3 terms of tenancy, each of 11 months, and thereafter he would vacate the premises in which a cinema hall was being run. It further appears that, as the petitioner failed to vacate the suit premises, an execution case was filed on 23-11-2009, which was registered as Execution Case No. 9/2009. It further appears that the petitioner, instead of honouring the compromise/ undertaking, filed Misc. Case No. 16/2009 for setting aside the order and decree dated 27.02.2007 and for restoration of Title Eviction Suit No. 153/2006. The said Misc. case also came to be dismissed on 16-03-2012. The Execution case, in the meanwhile, proceeded and order for delivery of possession was passed on 28-10-2010. Case No. 16/2009 for setting aside the order and decree dated 27.02.2007 and for restoration of Title Eviction Suit No. 153/2006. The said Misc. case also came to be dismissed on 16-03-2012. The Execution case, in the meanwhile, proceeded and order for delivery of possession was passed on 28-10-2010. The petitioner appeared in the execution case and on 14-01-2011 filed an application for stay of further proceeding on the ground of pendency of Misc. case No. 16/2009. After dismissal of said Misc. case No. 16/09, the petitioner filed a petition on 13-09-2012 questioning the maintainability of the said Execution case filed by the decree holder. It was, inter alia, urged by the petitioner before the executing court that there being non compliance of provisions of Order 21 Rule 22 of the Code, inasmuch as no notice was served upon him for filing detailed show cause, the execution case could not have proceeded. 5. Learned counsel for the respondents, however, firstly submits that the court below rightly rejected the petition dated 13-09-2012 as in fact the petitioner had been participating in the execution proceeding right from the beginning and he had ample opportunity to raise objection and file show cause, if any. He submits that even if it is presumed that no notice was served upon him, no prejudice could be said to have been caused to him as he participated in the execution proceeding. He has placed reliance on Order 21 Rule 22 of the Code with amendments applicable for Patna which reads thus:– “[Patna]- For sub-rule (1) of rule 22, substitute the following sub-rule:– “ Where an application for execution is made in writing under Rule 11(2), the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him” Add the following as sub-rule (3):– “(3) Proceedings held in execution of decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under sub-rule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgement-debtor has sustained injury thereby.”- (9-5-1947).(Emphasis Added) 6. He submits that though it is true that non issuance or non service of notice under Order 21 Rule 22 may be fatal in an execution proceeding but so far as Patna amendment is concerned, it provides that proceedings in execution of decree would not be invalid for the reason of any omission to issue or failure to serve notice under sub-rule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgement-debtor has sustained injury thereby. He submits that no injury has been caused to the petitioner by non service of notice, if he participated in course of the proceedings. He has placed reliance on following judgements of this court:– (i) AIR 1957, Patna, 431 (Sukhdeo Gond Vs. Brahmdeo Tewari & Ors) (ii) AIR 1957, Patna, 433 (Ramsaran Sah & Ors Vs. Deonandan Singh &Ors) (iii) AIR 1961, Patna, 480 (Jagarnath Raut Vs. Commissioner of Buxar Municipality & Ors) 7. Learned senior counsel appearing on behalf of the petitioner, in reply, has relied upon a Supreme Court judgement reported in (2008) 4 SCC 605 (Barakat Ali & anr. Vs. Badrinarain). He submits that proceeding under Order 21 Rule 23 can only be taken if the execution court either finds that after issuance of notice under Order 21 Rule 22, the judgement-debtor has not raised any objection or if such objection has been raised, the same has been decided by the executing court. He submits, with reference to paragraph 9 of the said judgement, that sub-rule (1) as well as sub-rule (2) under Order 21 Rule 22 operate simultaneously and if objection is filed then the court has a duty to consider such objection. In the absence of any notice, according to him, the execution court cannot proceed. 8. Submissions made on behalf of the parties have to be considered also in the light of admitted compromise between the parties, which is annexure-5 to the present application under Article 227 of the Constitution of India. 9. In the absence of any notice, according to him, the execution court cannot proceed. 8. Submissions made on behalf of the parties have to be considered also in the light of admitted compromise between the parties, which is annexure-5 to the present application under Article 227 of the Constitution of India. 9. So far as submission in relation to non issuance or non service of notice under Order 21 Rule 22 of the Code is concerned, I find substance in the submission made on behalf of the respondent that in view of the Patna amendment in the said Rule, the execution proceeding can be said to be invalid only if it is shown that it has caused injury to the judgement-debtor. It is not in dispute that petitioner had been participating in the execution proceeding. From annexure-5 it appears that petitioner himself had agreed to vacate the suit premises after completion of three terms of tenancy, each of 11 months. The fact that the parties had entered into compromise is also not in dispute. 10. Learned counsel for the respondent is right in placing reliance upon judgement of this court reported in AIR 1957, Patna, 431, relevant portion of paragraph 2 of which reads thus:– “In view of amended sub-r. (1) of O. 21, R. 22, as it stood after the 1st April, 1936, it appears to us that the issue of notice under O. 21, R. 22, Code of Civil Procedure, by the executing Court is not a matter of jurisdiction, because R. 22, sub-r. (2), permits the Court in exceptional cases to issue a process in execution of a decree if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. As a matter of construction, of the rule therefore, we think that the issue of a notice O. 21, R. 22, under the amended rule after the 1st of April 1936, was not a matter of jurisdiction. In the circumstances of this case, therefore, we hold that there was no lack of jurisdiction on the part of the executing Court and that the sale of the properties which took place on the 15th of September 1939, was not a nullity or without jurisdiction.” 11. In the circumstances of this case, therefore, we hold that there was no lack of jurisdiction on the part of the executing Court and that the sale of the properties which took place on the 15th of September 1939, was not a nullity or without jurisdiction.” 11. The same view has been reiterated in the case of Ramasaran Sah (supra) holding that in view of amendment in the Code, Order 21 Rule 22 as applicable to Patna, proceedings in execution case without issuance of notice under Order 21 Rule 22 must be held not to affect the jurisdiction of the court and that it is, at the most, a mere irregularity. Portion of paragraph 9 of the said judgement is quoted hereinbelow:– “This amendment, in my opinion, makes the matter clear beyond doubt that the proceedings in execution, without issue of notice under O. 21, R. 22, must be held not to affect the jurisdiction of the Court, and that it is, at the most, a mere irregularity, and that was the intention of the Legislature in enacting O. 21, R. 22.” 12. The view has been reaffirmed again by this court in AIR, 1961, Patna, 480. Paragraph 5 of which reads thus:– “(5) The other question raised in this case is whether the non-service of notice issued under Order 21, Rule 22, Code of Civil Procedure has the effect of making the sale in execution a nullity. The lower appellate court has relied upon a decision of this High Court in Ramdhari Sinvh Vs. Saligram Singh, AIR 1954 Pat 429 , but it is the admitted position that the present case is governed by the provisions of Order 21, Rule 22, Code of Civil Procedure, after its amendment. It is well settled by the authorities of this High Court that in view of the amended rule the issue of notice by the executing court under Order 21, Rule 22, Code of Civil Procedure, is not a matter of jurisdiction; see, for instance, the decision of this High Court in Sukhdeo Gond Vs. Brahamdeo Tewari, AIR 1957 Pat 431 . Brahamdeo Tewari, AIR 1957 Pat 431 . We accordingly hold that the sale in the execution case was not a nullity in the absence of notice under Order 21, Rule 22, Code of Civil Procedure, and the case will still be governed by Article 166 of the Limitation Act and not by Article 184 of that Act.” 13. In view of above, particularly, in view of the judgements of this court, as quoted above, non issuance or non service of notice does not touch upon the jurisdiction of the executing court and, at the maximum, it can be said to be mere irregularity. Secondly, in view of the fact that petitioner participated in the execution proceeding, non issuance or non service of notice cannot be said to have caused any injury to him. Thirdly, in view of Patna amendment of Order 21 Rule 22, execution proceeding cannot be invalidated on the ground of non issuance or non service of notice. 14. Last but not the least; in view of the fact that admittedly the petitioner entered into a compromise and gave an undertaking for vacating the suit premises within 33 months from the compromise, this court in exercise of power under Article 227 of the Constitution of India will not interfere for such reasons at the stage of execution. This writ application is, accordingly, dismissed.