Delhi High Court
Prem Nath Anand Buildcon Pvt. Ltd. ... vs Poonam Sharma on 3 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 530/2012 with CM 8042/2012
Date of Decision: 03.07.2012
PREM NATH ANAND BUILDCON PVT. LTD. & ANR.
...... Petitioners
Through: Ms. Mala Goel, Advocate.
Versus
POONAM SHARMA ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution of India seeks
assailing of order dated 01.03.2012 of the learned Additional District
Judge, Tis Hazari District Courts, Delhi in Execution No. 8 of 2012.
2. The petitioners had filed a suit for recovery of possession,
damages and mesne profits against the respondent Poonam Sharma and
other. The said suit was decreed on 26.10.2004. Respondent Poonam
Sharma preferred an appeal against the judgment before this Court vide
RFA No. 74 of 2005. This appeal came to be dismissed by this Court on
11th January 2012. Thereafter the petitioners filed petition for execution
of the decree before the concerned Court of ADJ vide Execution Petition
No. 8 of 2012. Vide the impugned order the learned ADJ directed issue
of notice to the J.D. Poonam Sharma by affixation at the conspicuous
place of the property and also on the notice board of the Court. It is this
order which has been assailed in the present petition.
3. The only ground pressed in assailing the said order is that learned
ADJ erred in issuing of notice to the J.D. It was submitted by learned
counsel for the petitioner that since the execution was filed within two
years of the decision of this Court in appeal, no notice was required to
be issued to the J.D. as per Order 21 Rule 22 CPC. The learned counsel
also referred to certain judgments to urge that the appeal was in
continuation of the suit and judgment and decree passed by the Trial
Court merged with the order of the appellate Court and that being so, it
was from the date of the decision in the appeal, that period of two years
was to be reckoned.
4. There is no dispute with regard to the submission that the
judgment and decree passed by the trial Court merged with the judgment
passed by this Court on 11.01.2012. There is also no dispute that the
execution petition was filed much prior to the period of two years and
that no notice mandatorily was required to be issued to the JD as per
Order 21 Rule 22 CPC. The question, however, is not that notice was
not mandatorily required to be issued when the execution was filed
within two years. On the other hand the question for consideration of
this Court would be as if the executing Court had issued a notice in the
interest of justice, was it against the provisions of Order 21 Rule 22
CPC. I do agree that if the execution petition was filed within two years
of the decree or the decision of the appellate Court, no notice was
mandatorily required to be issued to the J.D. However, Order 21 Rule
22 CPC does not preclude the Court to direct issue of notice to the J.D.
in exercise of its discretion on the basis of the facts and circumstances of
a particular case, even if the execution petition is filed within two years
from the date of the decree or the decision of the appellate Court. In
case where execution petition is filed within two years, it is open to the
executing court, in exercise of its discretion to issue notice to the J.D. to
meet the ends of justice. Similar view was taken by the Andhra Pradesh
High Court in Vasant Rao Vs. E. Raja Reddy AIR 2003 NOC 600. In
the present case the learned ADJ passed the impugned order after
hearing arguments addressed by the learned counsel for the petitioner
and has specifically recorded issue of notice to the JD in the manner as
indicated above, in the interest of justice.
5. I do not find any illegality or infirmity in the impugned order.
The apprehension of the learned counsel for the petitioner that issue of
notice will invite objections from the respondent is entirely misplaced
and misconceived. The objections, if any, came to be filed by the JD,
the petitioner would have its appropriate remedy as per law. There
being no merit in the petition, it is hereby dismissed in limini.
M.L. MEHTA, J.
JULY 3 , 2012
awanish
