Ajithkumar vs Sunitha Devi
2021 Latest Caselaw 19213 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
                          R.P.NO.582 OF 2021

AGAINST THE JUDGMENT DATED 15.07.2021 IN O.P.(C) NO.1145/2021 OF HIGH
COURT OF KERALA, ERNAKULAM.

REVIEW PETITIONER:

           AJITHKUMAR,
           AGED 60 YEARS, S/O.SUKUMARA PANICKER,
           RESIDING AT KARIMUTTATHU CHEMPUMPURATHU HOUSE,
           MADAPPALLY MURI, MADAPALLY VILLAGE,
           CHANGANASSERY, KOTTAYAM DISTRICT-686 546.

           BY ADV K.SHAJ

RESPONDENTS:

     1     SUNITHA DEVI,
           AGED 50 YEARS, D/O.RADHAMMA,
           RESIDING AT LATHA NIVAS,
           MADAPPALLY MURI, MADAPALLY VILLAGE,
           CHANGANACHERRY TALUK,
           KOTTAYAM DISTRICT-686 101.

     2     RAJENDRA PANICKER,
           AGED 64 YEARS, S/O.SUKUMARA PANCIKER,
           RESIDING AT ASWATHI HOUSE,
           PUZHAVATHU KARA, CHANGANACHERRY VILLAGE,
           KOTTAYAM DISTRICT-686 101.

           BY ADV.SANTHEEP ANKARATH

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.P.No.582/2021                          2

                              JUDGMENT

This review petition has been filed by the 1 st respondent in O.P.(C)

No.1145 of 2021. A reading of the judgment sought to be reviewed will

show that for reasons recorded in my judgment, the review

petitioner/1st respondent was not issued with notice in O.P.(C) No.1145

of 2021. Because the directions in O.P.(C) No.1145 of 2021 were issued

without hearing the review petitioner/1 st respondent in O.P.(C) No.1145

of 2021, I have heard the review petitioner at length.

2. The review petitioner suffered a decree in O.S.No.372 of

2017. That decree is dated 01.03.2021. On 23.06.2021, the decree-

holder (the petitioner in O.P.(C) No.1145 of 2021) applied for execution

of the decree. On a complaint that contrary to the mandate of Order

XXI R.22 of the Code of Civil Procedure, 1908 (hereinafter referred to

as the Code), the executing court had issued notice to the judgment

debtor, O.P.(C) No.1145 of 2021 was filed before this Court essentially

seeking a direction to the executing court to proceed in the manner

prescribed by Order XXI R.22 of the Code. On an appreciation of the

provisions of Order XXI R.22 of the Code and the judgments cited at

the bar, this Court disposed of O.P.(C) No.1145 of 2021 directing that,

since the execution petition was filed within two years from the date of

the decree sought to be executed, the executing court was not required

to issue notice calling upon the judgment debtor to show cause as to

why the decree should not be executed. It was directed that the

execution petition together with connected applications shall be taken

up for fresh consideration and proceeded with taking note of the

finding of this Court.

3. Sri.K.Shaj, the learned counsel appearing for the review

petitioner has referred to the provisions contained in Order XXI Rule 11

(2) and Order XXI Rule 17 of the Code and the provisions of the Civil

Rules of Practice to contend that invariably even in respect of cases not

covered by Order XXI R.22 (1) (a), (b) or (c), a notice was required

especially taking into account the nature of the decree. He has referred

to the judgment of Andhra Pradesh High Court in Vasant Rao v.

E.Raj Reddy [MANU/AP/1155/2002] to contend that in an

identical situation, the view taken by that court is that no provision

prohibits the issuance of notice even in cases not covered by Order XXI

R.22 (1) (a), (b) and (c) of the Code. He has also referred to the

judgment of this Court in Krishnan Raveendra Babu v.

Pappukutty Venugopalan [2004 (3) KLT 960] where this Court

has taken the view that no prejudice will be caused to the decree-holder

if a notice is issued even in cases not covered by Order XXI R.22 1 (a),

(b) or (c) and that taking note of the provisions contained in the Civil

Rules of Practice, ordinarily, the court will issue a notice to the

judgment debtor. The learned counsel for the review petitioner has also

pointed out that, in the guise of executing the decree without notice to

the judgment debtor, substantial mischief was committed by the decree

holder and considerable damage was caused to the judgment debtor.

4. Sri.Sandeep Ankarath, the learned counsel appearing for

the respondent in the review petition (the petitioner in O.P.(C) No.1145

of 2021) has referred to the judgments of the Bombay High Court in

Ulhas Pandharinath Chodankar and another v. Senior Civil

Judge, "C" Court at Mapusa, Bardez, Goa [2016 KHC 3633],

that of the Rajasthan High Court in Legal Representatives of

Maga Ram and another v. Kana Ram and others [1993 KHC

2009], that of this Court in Jaseentha Joseph v. Louis

Neeklause [1996 KHC 338], that of the Andhra Pradesh High Court

in Kondepati Tejo Ananthalakshmi and another v.

Kondepati Manikyam and others [2013 (6) ALD 402 : 2014

(1) ALT 226], that of the Madhya Pradesh High Court in

Kamalsingh v. Motisingh [1982 (0) MPWN 189] and finally to

the judgment of the Supreme Court in Rahul S. Shah v. Jinendra

Kumar Gandhi and others [2021 KHC 6252] to contend that the

consistent view taken by all courts is that except in cases covered by

Order XXI R.22 (1) (a), (b) and (c), notice of the execution petition

need not be given to the judgment debtor. He also submits that the

scheme of Order XXI is to ensure that the moment a decree was

passed, it is the bounden duty of the judgment debtor to see that the

decree is complied with and further that there is no delay caused in the

execution of a decree that has become final. He also contends with

reference to the facts of this case that the decree in question requires

the judgment debtor to remove a wall that prevented the access of the

respondent in the review petition to the property obtained by him in a

partition.

5. I have considered the rival contentions. Indeed, the Andhra

Pradesh High Court in Vasant Rao's case (supra) had considered

the identical situation where despite the provisions of Order XXI R.22

of the Code, the executing court had issued a notice to the judgment

debtor even when the petition was not one relatable to any situation

contemplated by Order XXI R.22 (1) (a), (b), or (c). Considering the

challenge to these proceedings, the Andhra Pradesh High Court in

Vasant Rao's case (supra) has concluded that no provision in Order

XXI would prohibit the issuance of such a notice and therefore the

issuance of such a notice cannot be questioned by the decree-holder. On

a reading of the provisions of Order XXI R.22 of the Code and the

judgments cited by the learned counsel appearing for the respondent in

this review petition, I am in respectful disagreement with the view

taken by the Andhra Pradesh High Court in Vasant Rao's case

(supra) for the simple reason that they appear to be contrary to the

express words of Order XXI R.22.

6. Coming to the judgment of this Court in Krishnan

Raveendra Babu's case (supra) on which considerable reliance has

been placed by the learned counsel for the review petitioner, it is

noticed that the facts of that case are completely different from the facts

of the present case. There the decree that was put into execution holds

that the judgment debtors are entitled to receive the subsequent value

of the improvements which can be adjudicated at the execution stage

and also that the decree holders are entitled to get damages if any and

which can also be adjudicated at the execution stage. It was in such

circumstances that this Court took the view that the judgment debtor,

in that case, was entitled to a notice notwithstanding the provisions

contained in Order XXI R.22. Of course, this Court has also noticed that

in certain circumstances levying execution without issuing notice may

cause hardship and irreparable injury to the judgment debtor and

further that no prejudice may be caused to the decree-holder by

ordering notice and further that, ordinarily, the court shall issue notice

and that notice will be dispensed with only in exceptional cases after

recording reasons. It is settled law that the judgment of a court is not to

be read like a statute and that an interpretation cannot be placed on

observations contained in a judgment completely divorced from the

factual situation. Useful reference may be made in this regard to the

judgment of the Supreme Court in Union of India v. Major

Bahadur Singh, (2006) 1 SCC 368, where it was held: -

"9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] Lord MacDermott observed: (All ER p. 14 C-D)

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation

appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge...."

10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL)] Lord Reid said: (All ER p. 297g-h)

"Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."

Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed: (All ER p. 1274d-e) "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" and, in Herrington v. British Railways Board [(1972) 2 WLR 537 : (1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord Morris said: (All ER p. 761c)

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19)

"19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

xxxx xxxx xxxx

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

As already noticed, the factual situation in Krishnan Raveendra

Babu's case (supra) was completely different and at the execution

stage also an adjudication of the value of improvements and damages

was required to be made. It was in that factual background that this

Court took the view that the judgment debtor was entitled to notice.

This is not the case here. I am therefore of the view that the view taken

by this Court in Krishnan Raveendra Babu's case (supra) is of no

avail to the review petitioner.

7. As already noticed, the consistent view taken by courts

regarding the provisions of Order XXI R.22 is that notice to the

judgment debtor is required only in cases covered by Order XXI R.22

(1) (a), (b) and (c) and further that even in cases covered by those

provisions, the court may, for reasons to be recorded in writing,

dispense with such notice. The Supreme Court in Rahul S. Shah's

case (supra) has taken note of the delay caused in execution and has

issued directions regarding how the execution petitions must be dealt

with by executing courts. Going by that judgment, the provisions of the

Code have to be kept in mind and strictly followed by every court

executing a decree.

8. The provisions of the Civil Rules of Practice cannot,

obviously, run counter to the express provisions of the Code. Therefore

even if the learned counsel for the Review Petitioner is correct in his

submission that those Rules require a notice even in cases where they

are not contemplated by the provisions of the Code, I am not inclined to

accept the same.

In that view of the matter, I believe that there is no merit in this

review petition. However, taking note of the submissions made by the

learned counsel for the review petitioner that, in the guise of executing

the decree, substantial damages have been caused to the review

petitioner, I make it clear that the executing court may examine the

issue as to whether any damage has been caused to the review

petitioner (judgment debtor) in O.S.No.372 of 2017 on the file of the

Munsiff's Court, Changanassery on account of the execution of the

decree and also as to whether the execution levied goes beyond the

terms of the decree. The Review Petition will stand dismissed with the

above observations.

Sd/-

GOPINATH P.

JUDGE bpr

APPENDIX

PETITIONER'S ANNEXURES:

ANNEXURE A1 PHOTOGRAPHS OF THE DEMOLITION OF THE BOUNDARY WALL OF THE PROPERTY OF THE PETITIONER.