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Dosoi Sonari Vs. Ramesh Chandra Dutta and anr. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 30 of 1978
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 22(2) and 22(3) - Order 22
AppellantDosoi Sonari
RespondentRamesh Chandra Dutta and anr.
Appellant AdvocateG.K. Talukdar, C.K. Sarma Barua and B.P. Kataky, Advs.
Respondent AdvocateJ.N. Sarma and R.K. Patowary, Advs.
DispositionApplication dismissed
Excerpt:
.....speaking order considered the pros and cons and held that the judement-debtor had knowledge of the execution proceedings and failed to establish that he had suffered any injury or prejudice for want of notice. ' 6. it would be seen on perusal of order 21, rule 22 that it is a procedural safeguard to prevent, execution of a decree which has become unexecutable for causes like adjustment of the decree, the decree becoming time barred, agreement between the parties to suspend the execution or happening of certain events which has rendered the decree unexecutable or some causes of the like nature. if the judgment-debtor appears and contests in the proceeding he should not be permitted to question the want of jurisdiction of the court merely on the score that he was not favoured with a..........submitted to its jurisdiction and lodged an application before it that he had nonotice of the execution proceeding to which he was entitled under order 21, rule 22 of 'the code'. curiously enough the petitioner having had the knowledge of the execution proceedings and submitting himself to the jurisdiction of the court took up the plea that the proceedings were liable to be quashed merely on the ground that no notice had been issued to him. however, the petitioner contended that the decretal property did not belong to mm alone and as such the decree could not be executed. one madan sahu raised an objection under order 21, rule 58 of 'the code' that in the decretal land he had right, title and interest and as such the decree could not be executed. the learned munsiff considered his.....
Judgment:

K. Lahiri, J.

1. Non-service of notice to show cause against an application for execution filed more than 2 years after the date of decree is fatal and makes the entire proceeding void ab initio, contends the counsel for the petitioner and points to Order 21, Rule 22 of the Civil Procedure Code, for short 'the Code'. This is the sole contention in this revision under Section 115 of the Code.

2. The defendant-petitioner is the poser against whom the Opposite Party 1 instituted a suit for ejectment, arrear rent and compensation in mid-sixties. The subject matter is a tiny plot of land covering 2880 square feet. The suit was decreed in 1968, confirmed by the 1st appellate Court and ultimately upheld by this Court in 1970. It required about 6 years to draw the suit to a close. Then comes the execution part of the story. The plaintiff put the decree into execution in 1973 and it was dismissed for default whereupon the decree-holder filed a fresh application for execution which was registered as Title Execution Case No. 8 of 1977. Indeed, the application for execution was filed beyond the period of 2 years from the date of the decree and no notice to show cause was served on the decree-holder under Order 21, Rule 22 of 'the Code'. Notwithstanding absence of notice the petitioner of his own appeared in Court, submitted to its jurisdiction and lodged an application before it that he had no

notice of the execution proceeding to which he was entitled under Order 21, Rule 22 of 'the Code'. Curiously enough the petitioner having had the knowledge of the execution proceedings and submitting himself to the jurisdiction of the Court took UP the plea that the proceedings were liable to be quashed merely on the ground that no notice had been issued to him. However, the petitioner contended that the decretal property did not belong to Mm alone and as such the decree could not be executed. One Madan Sahu raised an objection under Order 21, Rule 58 of 'the Code' that in the decretal land he had right, title and interest and as such the decree could not be executed. The learned Munsiff considered his application as well as that of the petitioner but turned down the contentions. The said Madan Sahu has not come before this Court. The learned Munsiff by a speaking order considered the pros and cons and held that the judement-debtor had knowledge of the execution proceedings and failed to establish that he had suffered any injury or prejudice for want of notice.

3. AN APERCU: All the grievances of the petitioner were poured out to the learned Munsiff and the latter discerned them all and by a speaking judicial order rejected the pleas. The learned Munsiff held that the decree could be executed and dismissed the claim of Madan Sahu. Hence this revision.

4. Mr. G.K. Talukdar, learned counsel for the petitioner in support of the contention submits that the provision of Order 22, Rule 1(a) is mandatory and non-compliance thereof rendered the proceeding void ab initio as it affected the jurisdiction of the Executing Court to proceed on with the action.

5. To appreciate the depth of the argument it is necessary to quote the relevant provisions of Order 21, Rule 22 of 'the Code' which runs thus;--

'22. Notice to show cause against execution in certain cases.-- (1) Where an application for execution is made -

(a) more than one year after the date of the decree, or,

(b) and (c) ......... ......... ......

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 .

Provided ..............'

The Calcutta High Court amendments vide Notification No. 3516-G of 3-2-1933. added the following as Sub-rule (3):

'(3) Omission to issue a notice in a case where notice is required under Sub-rule (1) or to record reasons in a case where notice is dispensed with under Sub-rule (2). shall not affect the jurisdiction of the court in executing the decree.'

*

6. It would be seen on perusal of Order 21, Rule 22 that it is a procedural safeguard to prevent, execution of a decree which has become unexecutable for causes like adjustment of the decree, the decree becoming time barred, agreement between the parties to suspend the execution or happening of certain events which has rendered the decree unexecutable or some causes of the like nature. The procedure envisaged is in substantial agreement with the procedure of a writ of scire facias (such a writ has now been abolished by the Crown Proceeding Act, 1947 (Schedule I). Procedural safeguards are meant to facilitate substantive justice and not to hinder justice. Procedural laws are loaded with innumerable technicalities and do not deserve a straw to be super-added to the existing technicalities. It would be merely piling unreason upon technicality to hold that non-service of a formal notice is fatal so much so that it takes away the jurisdiction of the court to continue with action. I have no hesitation in arriving at the conclusion that if a person gets a constructive notice, appear in court and contests in the proceeding, omission to issue formal notice does not impair or affect the jurisdiction of the court. The rules of estoppel and waiver come into operation. As alluded, the object of Order 21, Rule 22 is to prevent undue surprise if an execution is taken after lapse of period prescribed and to give opportunity to the judgment-debtor to show absence of the jurisdiction of the court to execute the decree. If the judgment-debtor appears and contests in the proceeding he should not be permitted to question the want of jurisdiction of the court merely on the score that he was not favoured with a 'formal notice'. I arrive at the finale that it is not rule that non-service of formal notice in-

variably renders a proceeding void nor does non-service of formal notice take away the jurisdiction of the court to proceed with the 'action'. If a decree is executed beyond two years after the date of the decree and it can be established that the decree was void as it was time-barred or had been satisfied or could not be executed, the entire proceedings are liable to be declared void in due course. Non-service of formal notice per se does not take away the jurisdiction of the court. However, these are observations in passing. In the instant case, the petitioner on receipt of constructive notice appeared in Court and submitted his say which were duly considered. The judgment-debtor showed cause why the decree could not be executed and the ground taken was a contention which the petitioner was busy disputing or at least could have taken up in the suit in which he had contested in all the Courts for 5 long years. As a matter of fact no injury has been suffered by the judgment-debtor for non-receipt of a formal notice. The petitioner having submitted to the Jurisdiction of the Executing Court placed all his points, which were duly - considered and turned down by the Executing Court. All the contentions received due consideration and fairly determined by the Executing Court. The view that I have taken finds support from the observation of Rankin, C. J. in Chandra Math Bagchi v. Nabadwip Chandra Dutta, AIR 1931 Cal 476. wherein the Chief Justice speaking for the court observed as follows (at p. 478):--

'It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the Judgment-debtors on these grounds to object to the Jurisdiction of the Court because they have not got a formal notice to do something, namely to dispute the execution of the decree when in point of fact they were busy disouting about it in all the court for the best part of the last two years.'

7. The dicta propounded by Rankin, C.J. has been approved by the Supreme Court in Superintendent of Taxes v. Bormohaian Tea Co. Ltd.. AIR 1978 SC 533(535). The principle of law confirmed by the Supreme Court is binding. Therefore, I have no hesitation to declare that there was no lack of jurisdiction of the Executing Court.

8. However. I would add that after the decision rendered by Rankin, C.J., the Calcutta High Court amended Rule 22 and added Sub-rule (3) which states that omission to issue a notice under Rule 22 or omission to record reasons to dispense with a notice shall not affect the jurisdiction of the court in executing the decree. The Calcutta amendment has been adopted by the Gauhati High Court. The amendment, in my view, was brought in as the High Court found strong reasons in the judgment of Rankin. C.J. wherein the Chief Justice exploded the futility of serving such notices invariably in all cases. The amendment shows that omission to issue notice under Sub-rule (1) or to record reasons where a notice is dispensed with does not affect the jurisdiction of the court in executing a decree. Non-service of notice or non-recording of reasons under Sub-rule (2) of Rule 22, in my opinion, did not in any way affect the jurisdiction of the Executing Court. The petitioner does not have any case at all as he had full opportunity to contest the execution proceeding, utilised his constructive knowledge, appeared in court and the Executing Court having considered all his grievances rendered a valid determination. The decision is impeccable. The impugned order needs no Interference. The petition does not fall anywhere near the four corners of Section 115 of 'the Code'. The suit is of 1962, the decree is of 1972 and we have just entered in 1981. Accordingly, on dismissal of the application I direct that the records should be sent down forthwith for expeditious execution of the decree without further delay.

9. The application stands dismissed with costs, which I assess at Rs. 200/-.


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