Javid Ahmad Shah & Ors vs Mst. Aisha & Ors
2021 Latest Caselaw 776 j&K/2

                                                                Sr. No.237
                                                                After Notice

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR
                             CR No.30/2019

Javid Ahmad Shah & Ors.                             ...PETITIONER(S)

      Through:-     Mr. Shafqat Nazir, Advocate.

                    Vs.

Mst. Aisha & Ors.                                  ...RESPONDENT(S)

      Through:-     Mr. Aftab Ahmad, Advocate.

CORAM:-HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

                           O R D E R(ORAL)

19-07-2021

1) This revision petition is directed against the order dated

01.05.2019 passed by Sub Judge, Handwara, in a petition filed by the

respondents herein seeking execution of judgment and decree dated

03.01.2015.

2) I have heard learned counsel for the parties and perused the record

of the case.

3) Petitioners have challenged the impugned order passed by the

Executing Court mainly on two grounds. One that the Executing Court

without issuing any notice to the petitioners has proceeded to pass the

order of execution of judgment and decree dated 03.01.2015 passed by

the said Court in the suit titled Mohammad Yousuf Shah vs. Mst. Aisha

and Ors. The second ground that has been urged is that that on an earlier

occasion, on the basis of a settlement arrived at between the parties, the

execution petition filed by the respondents-decree holders came to be CR No.30/2019 Page |2

dismissed as withdrawn in terms of order dated 29.04.2019 and, as such,

it was not open to the respondents herein to file a fresh execution

petition before the learned Executing Court.

4) So far as the first contention of the petitioners is concerned, it

appears from the record that the respondents had filed an application for

execution of the judgment and decree dated 03.01.2015, on 01.05.2019

and on the same day, the impugned order directing Assistant Collector,

Handwara, to effect partition of the suit land as per the decree sheet, was

made by the Executing Court.

5) Order XXI Rule 22 of the Code of Civil Procedure makes it

obligatory for an Executing Court to issue notice to show cause against

the execution in certain cases. It reads as under:

"22. Notice to show cause against execution in certain cases.--

(1) Where an application for execution is made--

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree, or (bb) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, or

(c) in respect of decree passed outside the State and execution whereof is sought within the State, 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 that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is CR No.30/2019 Page |3

applied for, made on any previous application for execution, in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the forgoing sub-rule 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 un-reasonable delay or would defect the ends of justice."

6) From a perusal of the afore-quoted provision, it is clear that

where an application for execution is made more than two years after the

date of the decree, notice of show cause to the person against whom

execution is applied for requiring him to show cause why the decree

should not be executed against him, has to be issued. The only exception

as provided in Proviso to sub-rule (1) is that no such notice is necessary

in a case where, on any previous application for execution, the Court has

ordered execution against a person. Further as per sub-rule (2), the Court

is not precluded from issuing any process in execution of a decree

without issuing the notice if for the reasons to be recorded, the Court

considers that the issuance of prior notice would cause unreasonable

delay or would defeat the ends of justice.

7) In the instant case, the respondents-decree holders had filed an

application for execution on an earlier occasion and the same was

dismissed as withdrawn on 29.04.2019. In the said application, no order

for execution of the decree had been passed by the Court. Therefore, the

conditions contained in proviso to sub-rule (1) are not satisfied in the

instant case. Further the impugned order does not contain any reasons CR No.30/2019 Page |4

for dispensing with the requirement of issuance of prior notice and, as

such, even the requirements of requirements of sub-rule (2) of Rule 22 of

Order XXI of CPC are also not fulfilled. The impugned order, therefore,

suffers from patent illegality and perversity.

12) So far as the second contention of the petitioner that once an

application for execution was dismissed as withdrawn on the basis of a

settlement, it was not open to the Executing Court to entertain the second

application, is concerned, this Court would not like to make any

observation on merits of the said contention in these proceedings as the

same would prejudice the case of the parties before the Executing Court.

The petitioners are at liberty to urge this ground before the Executing

Court.

13) For the foregoing reasons, the revision petition is accepted and the

impugned order dated 01.05.2019 passed by learned Sub Judge,

Handwara, is set aside with a direction to the Executing Court to pass a

fresh order on the execution application of the respondents after giving

an opportunity of hearing to the petitioners herein.

                      14)      Disposed of.


                                                                  (SANJAY DHAR)
                                                                     JUDGE
                      SRINAGAR
                      19.07.2021
                      "Bhat Altaf, PS"

                                         Whether the order is speaking:      Yes/No
                                         Whether the order is reportable:    Yes/No


MOHAMMAD ALTAF BHAT
2021.07.23 16:19
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