Skip to content


Gauri Lal and ors. Vs. Smt. Sujham Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 205 of 1982
Judge
Reported inAIR1986HP3
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rule 22(1)
AppellantGauri Lal and ors.
RespondentSmt. Sujham Devi
Appellant Advocate B.B. Vaid, Adv.
Respondent Advocate Devinder Gupta, Adv.
Cases ReferredGopal Chunder Chatterjee v. Gunamoni Dasi
Excerpt:
- .....248 of the code of 1882 is now replaced by order 21, rule 22 and that both the enactments contain a provision with regard to issue of a show cause notice against the legal representative of a party to the decree. the decision of the calcutta high court in gopal chunder chatterjee's case, which is approved by the judicial committee in raghunath das's case would, therefore, apply to the case in hand which also is one of the cases whereunder sub-rule (1) of order 21, rule 22 a notice to show cause is required to be issued. the consequence in the present case, there is that the executing court could not be regarded to have assumed jurisdiction legally and validly in issuing the warrant for possession without a show cause notice having been first served upon the defendants.....
Judgment:
ORDER

P.D. Desai, C.J.

1. The petitioners are the legal representatives of deceased Rama Nand (original plaintiff), Rama Nand had instituted a suit against the respondent (defendant 2) and one Ramayan Dassi (defendant 1) for a declaration that Ramayan Dassi could not have sold the suit land without the consent of the plaintiff as per the custom prevalent in the area since the land was inherited by her on the death of her husband and for the consequential relief of the cancellation of mutation entry recording the sale. It appears that in the course of the suit a compromise was arrived at between the parties according to which the plaintiff agreed to pay a sum of Rs. 1000/- to the defendants and the defendants agreed to hand over the possession of the suit land to the plaintiff on receipt of such sum after harvesting the standing crop. On the basis of the compromise a decree for possession was passed in favour of the plaintiff and against the defendants on July 25, 1975, 'subject to payment of Rs. 1000/- by the plaintiff to the defendants on or before 31st Oct. 1975 after harvesting the existing crop standing on the land in suit and without sowing any new crop'.

2. The plaintiff failed to make the payment of the sum of Rs. 1000/- to the defendants on or before Oct. 31, 1975. The said sum of Rs. 1000/- was, however, deposited in the Court on Oct. 25, 1977, without obtaining prior permission. The plaintiff then filed an execution application on June 18, 1981, that is, nearly six years after the decree was passed. The executing Court without issuing a show cause notice to the defendants issued a warrant for possession. On the strength of the said warrant for possession the defendants were dispossessed on July 16, 1981.

3. Thereupon, the defendants filed the objection petition, under Section 47 of the Civil P.C. out of which this revision petition arises alleging, inter alia, that in view of non-compliance with the prbvisions of Order 21, Rule 22, the proceedings which culminated into the dispossession of the defendants or anyone of them were illegal and invalid. Certain other pleas were also raised with which we are not concerned at the present stage and I must be taken to have expressed no opinion as regards those pleas. The executing Court held in favour of the defendants as regards the plea based on Order 21, Rule 22 and held that the proceeding which culminated into the dispossession of defendants or anyone of them was illegal and invalid.

4. The short question which arises for consideration is whether there is any jurisdictional error in the decision recorded by the executing Court. The fact that the execution proceedings were instituted nearly six years after the passing of the decree is not and cannot be disputed. The further fact that no show cause notice was served on the defendants (judgment-debtors) before the warrant for possession was issued nor was the service of the show cause notice dispensed with by an order of the Court is also not in dispute. Order 21, Rule 22, Sub-rule (1) provides for a notice to show cause to issue against execution in certain cases and one of the cases in which such notice is necessary is where an application for execution is made 'more than two years after the date of the decree'. There is a proviso which is not applicable on the facts and in the circumstances of the case and it need not detain us. Sub-rule (2), which is in the nature of an overriding provision, enacts that nothing in Sub-rule (1) shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, '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'. An amendment made in Sub-rule (2), which applies in Himachal Pradesh, further enacts that failure to record such reason shall be considered an irregularity not amounting to a defect in jurisdiction.

5. It is thus clear that in cases where an application for execution is made more than two years after the date of decree, no processin execution can issue unless a notice to show cause is served on the judgment-debtor or the service of such notice is dispensed with in accordance with law. The Judicial Committee in Raghunath Dass v. Sunder Dass Khetri, AIR 1914 PC 129 approved the decision of Calcutta High Court in Gopal Chunder Chatterjee v. Gunamoni Dasi, (1892) ILR 20 Cal 370, that a notice under Section 248 of the Civil P.C., 1882, was necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of the deceased judgment-debtor. Be it stated that Section 248 of the Code of 1882 is now replaced by Order 21, Rule 22 and that both the enactments contain a provision with regard to issue of a show cause notice against the legal representative of a party to the decree. The decision of the Calcutta High Court in Gopal Chunder Chatterjee's case, which is approved by the Judicial Committee in Raghunath Das's case would, therefore, apply to the case in hand which also is one of the cases whereunder Sub-rule (1) of Order 21, Rule 22 a notice to show cause is required to be issued. The consequence in the present case, there is that the executing Court could not be regarded to have assumed jurisdiction legally and validly in issuing the warrant for possession without a show cause notice having been first served upon the defendants (judgment-debtors).

6. For the foregoing reasons, in my opinion, the executing court was right in taking the view that it did on the legality and validity of the issue of process which resulted in the dispossession of the defendants. No ground for interference in revision is, therefore, made out. Rule discharged with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //