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Chloride India Limited Vs. Ganesh Das Ramgopal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 821 of 1985
Judge
Reported inAIR1986Cal74,89CWN933
ActsCode of Civil Procedure (CPC) , 1908 - Section 148A - Order 21 Rules 22 and 37
AppellantChloride India Limited
RespondentGanesh Das Ramgopal
Appellant AdvocateM.N. Ghosh and ;Suchit Banerjee, Advs.
Respondent AdvocateSoumendra Nath Mukherjee and ;Nirmal Banerjee, Advs.
DispositionApplication dismissed
Excerpt:
- .....of these provisions is that in cases not covered by such provisions, providing for specific notice, notice of execution is not necessary. the code does not contemplate that the judgment-debtor should appear at that stage before the executing court except in the cases where the court has prescribed notice for their appearance. therefore, section 148a cannot be construed to mean and provide that even in cases where the code itself contemplates that in levying execution no notice is required to be given, such a notice is to be enforced by lodging of a caveat under section 148a. in our opinion, such a construction of section 148a would bring inconsistency and section 148a should not be interpreted to contemplate enforcement of a notice in cases where notice is otherwise ruled out by.....
Judgment:

Anil K. Sen, J.

1. This revisional application which is being heard as a contested application raises a short point as to whether the Judgment-debtor is entitled to claim a notice from the decree-holder for levying execution by lodging a caveat under Section 148A of Civil P.C. The Ld. Registrar City Civil Court, Calcutta has taken the view that the judgment-debtor is not entitled to such a notice in pressing the order dated March 4, 1985 in Ejectment Execution case No. 38 of 1985 and this is the order now being challenged before us by the judgment-debtor.

2. Mr. Ghosh appearing on behalf of the Judgment-debtor has contended that Section 148A was incorporated in the Code by the 1976 amendment in wide terms. According to Mr. Ghosh Section 148A provides that where an application is expected to be made or has been made in a suit or proceeding instituted or about to be instituted in a court any person claiming a right to appear before the said Court on the hearing of the application may lodge a caveat in respect thereof. It further provides that as and when a caveat is lodged in accordance with the said provision the Court is required to serve a notice of the application on the caveat or when such an application is filed in any suit or proceeding. Mr. Ghosh contends that although Law Commission recommended that such a right to lodge caveat should be restricted to suits, the legislature extended the same to cover all proceedings and such proceeding, according to Mr. Ghosh, necessarily includes a proceeding for execution. Therefore, according to Mr. Ghosh there is no reason why the judgment-debtor cannot lodge a caveat and when such a caveat is lodged why he should not be served with a notice of any application for execution when filed.

3. In our opinion, different provisions of the Code must be interpreted in such a manner that they are made to be consistent with each other. In matters of execution the legislature specifically provides in Order 21, Rule 22 and Order 21, Rule 37 for issue of a notice under given circumstances. The necessary implication of these provisions is that in cases not covered by such provisions, providing for specific notice, notice of execution is not necessary. The code does not contemplate that the judgment-debtor should appear at that stage before the executing court except in the cases where the court has prescribed notice for their appearance. Therefore, Section 148A cannot be construed to mean and provide that even in cases where the code itself contemplates that in levying execution no notice is required to be given, such a notice is to be enforced by lodging of a caveat under Section 148A. In our opinion, such a construction of Section 148A would bring inconsistency and Section 148A should not be interpreted to contemplate enforcement of a notice in cases where notice is otherwise ruled out by the other provisions of the Code. It was suggested that every judgment-debtor has right to object to the execution and for the purpose of enforcement of such a right, he can demand a prior notice by lodging caveat. In our opinion, there is no force in this contention for the simple reason that it has now been made clear by the Supreme Court that the right to lodge an objection under Section 47 is not dependent on filing of execution case. In the result, we must uphold the order passed by the learned Registrar when he held that the judgment-debtor is not entitled to a notice of an execution of a decree for ejectment at the initial stage by lodging a caveat anticipating such an execution.

4. The revisional application, therefore, fails and is dismissed. There will be no order for costs.


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