Sunday, 14 August 2016

Whether court should issue notice in execution application if it is filed within two years of decree?

In the instant case, the decree that is being sought to
be executed through the executing Court is passed on
16.01.2014. The execution application has been filed in
December, 2015, that is, before expiry of period of two years
from the date of decree. Under Order 21 Rule 22 C.P.C., when
an application for execution of decree is made after expiry of
two years from the date of decree, then only the executing
Court is required to issue a notice to the judgment debtor for
requiring him to show cause as to why the decree should not be
executed against him, and otherwise not. In other words, when
the execution is sought before expiry of period of two years
from the date of the decree, a reverse situation would be true
thereby meaning that no mandatory duty would be cast upon
the Court to issue a show cause notice to the judgment debtor.
It would also mean that the executing Court would have the
power to execute the decree forthwith without issuing any
notice to the judgment debtor. There is no provision in Order 21
Rule 22 conferring any discretionary power upon the executing
Court to issue a show cause notice to the judgment debtor even
in a case where the execution is sought for within two years
from the date of the decree. If no such power has been
conferred by any express provision of law, I do not understand
as to how the learned Senior Civil Judge could read such a
power as residing in him in the scheme of the provisions of
Order 21 C.P.C. Learned Senior Civil Judge has also accepted
the fact that execution has been sought within two years from
the date of the decree. Even in the case of Inocencio
Fernandes (supra), the need for executing the decree
forthwith, in a case where the execution application has been
made within the stipulated time, it was one year at the time
when the judgment was rendered, has been underlined.
However it appears that learned Senior Civil Judge has not
considered the ratio of this case in a proper perspective.
Therefore, the order impugned herein would have to be termed
as an order passed in breach of express provisions of law and
cannot be sustained.
It may be mentioned here while exercising the
discretion to issue show cause notice to the judgment debtor in
this case when it was not really available under the express
provisions of law, the learned Senior Civil Judge has also not
invoked his inherent power under Section 151 C.P.C., and it can
be seen from the impugned order. 
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 254 OF 2016
 Shri Ulhas Pandharinath Chodankar,

 Versus
The Senior Civil Judge, “C”
Court at Mapusa, Bardez, Goa.
 Deleted as per
 Order dated
 10.03.2016 …
CORAM:- S.B. SHUKRE, J.
 DATE:- 10thMARCH, 2016.
Citation:AIR 2016 (NOC)476 Bom

Heard learned Counsel for the petitioner.
2. In view of the law laid down by the Hon'ble Apex
Court in the case of Savitri Devi Vs. District Judge,
Gorakhpur and Others, (1999) 2 SCC 577, this being a Writ
Petition invoking supervisory jurisdiction of this Court under
Article 227 of the Constitution of India against the order passed
by the learned Senior Civil Judge dated 30.01.2016, it is
directed that the respondent-Judicial Officer be deleted
forthwith. Cause title be amended accordingly forthwith.
3. After deletion of the sole respondent from the array
of party-respondent in the cause title of this petition, the
question relating to legality and correctness of the impugned
order still remains and even in the absence of a specific person
added as respondent-party, having regard to the nature of the
supervisory powers of the Court, this question can be dealt with
in such a situation. Accordingly, the question of legality and
correctness is being considered in the light of the argument
canvassed before me by learned Counsel for the petitioners and
the applicable legal provisions.
4. Heard. Rule. Heard finally.
5. It is contended by learned Counsel for the petitioners
that the execution of decree which has been sought for by the
petitioners was passed within two years of time from the date of
execution application and therefore, as held in the case of
Inocencio Fernandes Vs. Francisco Mario De Jesus Lopes,
AIR 1978 Goa, Daman and Diu 13, the executing Court
ought to have directed, execution of the decree immediately by
issuing warrant of possession without issuing any notice to the
judgment debtor. He submits that law so laid down in the said
case has not been applied by the learned Senior Civil Judge and
without there being any specific provision of law conferring
discretionary power upon the executing Court to issue notice,
even in a case where a decree is being executed is less than two
years old, the learned Senior Civil Judge has erroneously passed
the impugned order wherein he has issued notice to the
judgment debtor.
6. In the instant case, the decree that is being sought to
be executed through the executing Court is passed on
16.01.2014. The execution application has been filed in
December, 2015, that is, before expiry of period of two years
from the date of decree. Under Order 21 Rule 22 C.P.C., when
an application for execution of decree is made after expiry of
two years from the date of decree, then only the executing
Court is required to issue a notice to the judgment debtor for
requiring him to show cause as to why the decree should not be
executed against him, and otherwise not. In other words, when
the execution is sought before expiry of period of two years
from the date of the decree, a reverse situation would be true
thereby meaning that no mandatory duty would be cast upon
the Court to issue a show cause notice to the judgment debtor.
It would also mean that the executing Court would have the
power to execute the decree forthwith without issuing any
notice to the judgment debtor. There is no provision in Order 21
Rule 22 conferring any discretionary power upon the executing
Court to issue a show cause notice to the judgment debtor even
in a case where the execution is sought for within two years
from the date of the decree. If no such power has been
conferred by any express provision of law, I do not understand
as to how the learned Senior Civil Judge could read such a
power as residing in him in the scheme of the provisions of
Order 21 C.P.C. Learned Senior Civil Judge has also accepted
the fact that execution has been sought within two years from
the date of the decree. Even in the case of Inocencio
Fernandes (supra), the need for executing the decree
forthwith, in a case where the execution application has been
made within the stipulated time, it was one year at the time
when the judgment was rendered, has been underlined.
However it appears that learned Senior Civil Judge has not
considered the ratio of this case in a proper perspective.
Therefore, the order impugned herein would have to be termed
as an order passed in breach of express provisions of law and
cannot be sustained.
7. It may be mentioned here while exercising the
discretion to issue show cause notice to the judgment debtor in
this case when it was not really available under the express
provisions of law, the learned Senior Civil Judge has also not
invoked his inherent power under Section 151 C.P.C., and it can
be seen from the impugned order. The discretionary power seen
to be existing in him has been drawn, if I may say so, from
some assumptions.
8. In the circumstances, the impugned order deserves
to be quashed and set aside and it is quashed and set aside.
The matter is remanded back to the learned Senior Civil Judge
for deciding the application for execution of the decree afresh, in
accordance with law, keeping in view the observations made in
this order. The Writ Petition is disposed of.
9. Rule is made absolute in the above terms. No costs.
S. B. SHUKRE, J.

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