Kerala High Court
Sunitha Devi vs Ajithkumar on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
OP(C) NO. 1145 OF 2021
AGAINST THE JUDGMENT IN OS 372/2017 OF MUNSIFF COURT, CHANGANACHERRY,
KOTTAYAM
PETITIONER/1st PETITIONER/1st PLAINTIFF:
SUNITHA DEVI,AGED 50 YEARS,D/O.RADHAMMA, LATHA
NIVAS, MADAPPALLY MURI, MADAPPALLY VILLAGE,
CHANGANACHERRY TALUK.
BY ADV SANTHEEP ANKARATH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. AJITHKUMAR, AGED 60 YEARS,S/O.SUKUMARA
PANICKER,CHEMPUMPURAM KARIMUTTATHU HOUSE, MADAPPALLY
MURI, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK REP.
BY THE POWER OF ATTORNEY HOLDER JOSEPH P.A., AGED 67
YEARS, S/O.ANTHONY, PRAKUZHY HOUSE, MAMMOOD P.O.,
MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM
DISTRICT, PIN-686 536.
2. RAJENDRA PANICKER, AGED 64 YEARS, S/O. SUKUMARA
PANICKER, ASWATHY HOUSE, PUZHAVATHU MURI,
CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-6861 01.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Civil)No.1145/2021 2
JUDGMENT
The petitioner filed E.P.40/2021 seeking the execution of the decree in
O.S. 372/2017 on the file of the Munsiff Court, Changanassery. This Original
Petition (Civil) is filed challenging Exts.P11 to P13 orders in E.P.No.40/2021 &
E.A.Nos.1/2021 and 2/2021 in E.P.No.40/2021. In Ext.P11 order, the learned
Munsiff, Changanacherry directed the issuance of notice under Order XXI Rule
35 of the Code of Civil Procedure and directed posting of the E.P on 26.7.2021.
Consequently, E.A.Nos.1/2021 and 2/201 in E.P.No.40/2021 were also directed
to be listed on 26.7.2021.
2. The learned counsel for the petitioner submits that this is a case
where the decree is one granting a mandatory injunction and does not relate to
the delivery of any immovable property. He submits that Order XXI Rule 22 of
the Code of Civil Procedure applies and if the application for execution is filed
within 2 years of the decree, the execution proceedings must be initiated
without further notice to the Judgment Debtors. He submits that the procedure
under Order XXI Rule 35 of the Code of Civil Procedure does not apply. He
also refers to the judgment of the Madras High Court in Nachayee Ammal
and others v. Pichaimuthu; 1992 KHC 2420 in support of his contention. He
also submits that in the nature of the controversy raised, it would be a futile
exercise if this Court were to issue notice to the respondents.
3. In Nachayee Ammal (supra), the Madras High Court considered
a Circular issued by the Madras High Court on the administrative side directing
that, even in respect of matters covered by Order XXI Rule 22, a notice has to
be issued. The question was whether in proceedings covered by Order XXI
Rule 22 such a notice was required. It was categorically held "Under Order XXI
Rule 22 of the Code of Civil Procedure, the Executing Court shall issue a notice
to the person against whom the execution is applied only if the execution
petition is made more than two years after the date of the decree or it is made
against the assignee or Receiver in insolvency". To the same effect is the
judgment of the Bombay High Court in Maharashtra State Financial
Corporation v. Esther D. Gama; AIR 1988 BOM 61. I am in respectful
agreement with the view taken by the Madras High Court and the Bombay
High Court. No other interpretation is possible of the provisions contained in
O.XXI Rule 22. I am also in agreement with the contention of the learned
Counsel for the petitioner that ordering notice in this petition may defeat the
very purpose of the executing Court proceeding for execution without further
notice if the execution is sought within a period of two years from the date of
the decree.
4. On facts, the decree sought to be executed is dated 1.3.2021.
Obviously, E.P. 40/2021 has been filed within a period of two years from the
date of the decree. Therefore I am convinced that the Learned Munsiff could
have proceeded without notice to the Judgment Debtor, going by the provisions
of Order XXI Rule 22. Accordingly, Exts.P11, P12 and P13 orders are set aside.
There will be a direction to the learned Munsiff, Changanacherry to take up
E.P.No.40/2021 and E.A.Nos.1/2021 and 2/2021 in E.P.No.40/2021 for fresh
consideration, in the light of the above finding.
Sd/-
GOPINATH P.
JUDGE
acd
PETITIONER'S EXHIBITS
EXT.P1: COPY OF THE PLAINT AS IT STANDS TODAY AFTER THE
AMENDMENTS IN O.S.NO.372/2017 AND DATED 7.11.2017 ON
THE FILE OF THE MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P2: COPY OF PLAINT IN O.S.NO.374/2017 DATED 9.11.2017 ON
THE FILE OF THE MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P3: COPY OF JUDGMENT DATED 7.11.2019 IN O.P.
(CIVIL)NO.3430/2018 PASSED BY THIS HON'BLE COURT.
EXT.P4: COPY OF JUDGMENT DATED 7.11.2019 IN O.P.
(CIVIL)NO.3435/2018 PASSED BY THIS HON'BLE COURT.
EXT.P5: COPY OF JUDGMENT DATED 28.1.2021 IN O.P.
(CIVIL)No.1982/2020 PASSED BY THIS HON'BLE COURT.
EXT.P6: COPY OF JUDGMENT DATED 1.03.2021 IN O.S.NO.372/2017
PASSED BY MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P7: COPY OF THE JUDGMENT DATED 1.3.2021 IN
O.S.NO.374/2017 PASSED BY MUNSIFF'S COURT,
CHANGANACHERRY.
EXT.P8: COPY OF EXECUTION PETITION NO.40/2021 DATED 23.6.2021
FILED BY PETITIONER HEREIN AND ANOTHER IN
O.S.NO.372/2012 BEFORE THE MUNSIFF'S COURT,
CHANGANACHERRY.
EXT.P9: COPY OF E.A.NO.1/2021 IN E.P.NO.40/2021 ON THE FILE
OF THE MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P10: COPY OF E.A.NO.2/2021 IN E.P.NO.40/2021 ON THE FILE
OF THE MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P11: COPY OF ORDER DATED 24.6.2021 IN E.P.NO.40/2021 IN
O.S.NO.372/2017 PASSED BY MUNSIFF'S COURT,
CHANGANACHERRY.
EXT.P12: COPY OF ORDER DATED 24.6.2021 IN E.A.NO.1/2021 IN
E.P.NO.40/2021 PASSED BY MUNSIFF'S COURT, CHANGANACHERRY.
EXT.P13: COPY OF ORDER DATED 24.6.2021 IN E.A.NO.2/2021 IN
E.P.NO.40/2021 PASSED BY MUNSIFF'S COURT, CHANGANACHERRY.
