Madras High Court
Santhakumari vs Selvakumari on 3 January, 2023
CRP(PD)(MD)No.2545 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(PD)(MD)No.2545 of 2022
Rathinasabapathi (died)
Saraswathi (died)
1. Santhakumari
2. Sampath
3. Rani
4. Rajendran
Uthaman (Died)
5. Parvathi
6. Saraswathi
7. Umaselvi
8. Lakshmipriya ... Petitioners
versus
Pattammal (died)
Thirumeni (died)
1. Selvakumari
2. Mutharasan ... Respondents
Civil Revision Petition filed under Article 227 of the Constitution
of India, against the docket order dated 12.07.2022 made in E.P.No.41
of 2022 in O.S.No.97 of 1996 on the file of the learned Principal
1/7
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CRP(PD)(MD)No.2545 of 2022
District Munsif, Thanjavur.
For Petitioners : Mr.N.Suresh
ORDER
The petitioner/decree holder has filed this Civil Revision Petition
as against the docket order dated 12.07.2022 made in E.P.No.41 of
2022 in O.S.No.97 of 1996 on the file of the learned Principal District
Munsif, Thanjavur.
2. The petitioner has filed the above E.P.No.41 of 2022, after the
Judgment and Decree passed in S.A.(MD)No.976 of 2014 dated
06.09.2021, within a period of two years from the date of decree by the
Appellate Court. The Execution Court, by docket order dated
12.07.2022, issued notice to the Judgment Debtor. Aggrieved over the
same, the present Civil Revision Petition is filed.
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CRP(PD)(MD)No.2545 of 2022
3. The learned counsel for the petitioner, by relying upon the
provisions under Order 21 Rule 22 C.P.C. and the Judgment of this
Court in Hazrath Imam Hussain Wakf, rep. by its Muthavalli Mr.Aga
Zulfikar Ali @ Afzal Aga, Chennai vs. Nayeema Adib reported in
(2006) 4 MLJ 190 and another Judgment of this Court in M/s.Jumma
Periya Pallivasal Wakf vs. P.Abdul Jabbar reported in CDJ 2022
MHC 301, submits that the Court ought not to have issued notice,
when the Execution Petition was filed within two years from the date
of decree.
4. Order 21 Rule 22 C.P.C. makes it clear that if the Execution
Petition is filed within two years from the date of decree, there is no
necessity for a notice to show cause against execution to the Judgment
Debtor.
5. This Court, in Hazrath Imam Hussain Wakf, rep. by its
Muthavalli Mr.Aga Zulfikar Ali @ Afzal Aga, Chennai vs. Nayeema
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CRP(PD)(MD)No.2545 of 2022
Adib reported in (2006) 4 MLJ 190, held as follows:
“2. Order 21, Rule 35 C.P.C. read along with
Order 21, Rule 22 C.P.C. makes it clear that in the event
of application for execution being filed within two years
from the date of the decree, the execution Court is fully
empowered to secure possession to be delivered to the
decree-holder from the person in possession who is
bound by the decree and who refuses to vacate the
property. Under sub-rule (3) of Rule 35 of Order 21
C.P.C., if such person who is bound by the decree does
not afford free access, the Court can through its officers
after giving reasonable warning and facility to any
woman not appearing in public according to customs of
the country to withdraw, remove or open any lock or bolt
or break open any door or do any other act necessary for
putting the decree-holder in possession. Thus, a conjoint
reading of Order 21 and Rule 22 and Rule 35 C.P.C.
makes it clear that in the event of the decree-holder
approaching the concerned execution Court within two
years after the date of the decree, is entitled for recovery
of possession by order of delivery without any notice
being order of delivery without any notice being ordered
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CRP(PD)(MD)No.2545 of 2022
in the judgment-debtor concerned.
3. The said legal position has also been affirmed
by this Court by His Lordship M.SRINIVASAN, as he
then was, in the judgment reported, in Nachayee Ammal
and Others vs. Pichaimuthu (1992) 2 MLJ 498 wherein
the learned Judge has stated the legal position as under in
paragraph 4:
“ ...... If the execution petition is filed
within two years after the date of the decree,
there is no necessity for the executing Court to
issue notice to the judgment-debtor .........”
“6. Consequently, the order dated
7.1.1991 recording delivery is directly in
accordance with law as the order granting
execution without notice to the judgment-debtor
was in accordance with the provisions of Order
21, Rule 22 of the Civil Procedure Code.
Hence, that order cannot be set aside on the
ground that the Circular issued by this Court
had not been followed or complied with.”
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CRP(PD)(MD)No.2545 of 2022
6. In the light of the above said legal position, the Civil Revision
Petition is allowed. The Executing Court is directed to proceed with
the Execution Petition in E.P.No.41 of 2022 without ordering notice to
the respondent/Judgment Debtor.
03.01.2023
ogy
NCC : Yes / No.
Index : Yes / No.
Internet : Yes / No.
Note: Issue order copy on or before 05.01.2023.
To
1. The learned Principal District Munsif,
Thanjavur.
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.2545 of 2022
B.PUGALENDHI, J.
ogy
CRP(PD)(MD)No.2545 of 2022
03.01.2023
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