: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 4 TH DAY OF AUGUST, 2015 BEFORE THE HON BLE MR. JUSTICE K.N. PHANEENDRA BETWEEN: WP No.104476/2014 (GM-CPC) Shri Sanjay S/o. Balasaheb Bhosale, Aged about 37 years, Occ: Agriculture R/o. Chinchali, Tal: Raibag, Dist: Belgavi Since deceased by L.R. Jyoti D/o. Sanjay Bhosale, Aged about 17 years, Occ: Student, R/o. Chinchali, Tal: Raibag, Dist: Belgavi Represented by N/G. Maternal Grandmother Smt. Vitabai Yashwant Mohite Aged about 50 years, Occ: Housewife, R/o. Balgar Galli, Tal:Mudhol, Dist: Bagalkot... Petitioner (By Sri Ramachandra A. Mali, Advocate) AND: Shri Sadashiv S/o. Sakharam Pol, Aged about 67 years, Occ: Agriculture, R/o: Chinchali, Tal: Raibag, Dist: Belgavi... Respondent
: 2 : This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the sale deed executed by the Court Commissioner in EP No.36/2013 on 21.12.2013 and Order dated 04.01.2014 passed by the learned Judge of the Executing Court i.e. Senior Civil Judge, Raibag. This Writ Petition coming on for Preliminary Hearing this day, the Court made the following: ORDER The petitioner approached this Court challenging the order passed by the Senior Civil Judge and JMFC Raibag in Execution Petition No.36/2013 and sought for quashing of the entire proceedings in the said execution proceedings as illegal, void and non- est in the eye of law. 2. I have heard the detailed argument of the learned counsel for the petitioner and perused the records. 3. The records disclose that the respondent herein has filed a suit in OS No.113/2013 and the
: 3 : said suit came to be decreed and no appeal was preferred because it was an exparte decree passed against the petitioner herein and the said decree was put into execution and the executing Court has appointed a Commission for execution of the sale deed in favour of the respondent herein and completed the execution proceedings accepting the report of the Commissioner that he has complied with the directions issued by the Court. 4. The learned counsel for the petitioner Sri Ramachandra A. Mali, seriously contends before the Court that the respondent by means of misrepresentation upon the trial Court has snatched an ex-parte decree at the hands of the Court and thereafter put the said judgment into execution and hurriedly has taken order from the Court even without taking notice to the petitioner in the execution proceedings. The learned counsel for the
: 4 : petitioner though argued at the initial stages with regard to the fraud alleged to have played by the plaintiff in OS No.113/2013, later he concentrated on the fraudulent act of the respondent during the course of execution proceedings. 5. He mainly contends before this Court that, though it is not mandatory on the part of the executing Court for issuance of the notice if the execution petition is filed within a period of two years from the date of decree, but the other prevailed circumstances so that it is an ex-parte decree and for non-issuance of the notice causes substantial injury to the judgment debtor then it is impediment upon the Court to issue such notice otherwise the Court has to reasoned out why the notice is not necessary to the judgment debtor, and thereafter the Executing Court can proceed with the case. Before adverting the above said two important aspects raised by the
: 5 : learned counsel for the petitioner, which has lead me to go through the proceedings that has taken place before the executing Court. 6. The decree was passed by the trial Court on 28.09.2013. Execution Petition was filed on 03.12.2013. On 03.12.2013 learned Judge heard on IA and passed orders on 04.12.2013, permitting the decree holder to deposit the sale consideration amount of Rs.1,50,000/- and thereafter on 05.12.2013 the very next day issued R.O. for Rs.1,50,000/- for the deposit of the said amount before the Court. On 10.12.2013 after five days the decree holder filed IA No.2 under Order-26 Rule-10(B) read with Section 151 of CPC to appoint the Court Commissioner to execute the sale deed in favour of the decree holder as per the contents of the decree. The Court has appointed the Accounts Sheresthedar of the said Court as Court Commissioner and fixed
: 6 : the commission fee at Rs.2,000/-. On 12.12.2013 the Advocate for the decree holder filed a memo requesting the Court to appoint an Advocate as Commissioner instead of the Court Staff finally as Commissioner. The Court has allowed the said request and appointed Sri V.A. More, Advocate as Court Commissioner. An amount of Rs.2,000/- was deposited and thereafter on the commissioner warrant issued to the said Commissioner, on 04.01.2014 the Commissioner reported back stating that he has complied with the warrant issued by the Court submitting that the execution petition was fully satisfied and the Court has accepted the same and it appears that the execution petition was closed. 7. The learned counsel on the basis of the above said proceedings before the execution Court, submits that the decree holder is in hurry to see that his execution petition is disposed of at the earliest. Of
: 7 : course on 03.12.2013 and by 04.01.2014 within a span of one month entire proceedings were concluded before the executing Court. Now the learned counsel contended that the notice ought to have been issued to the judgment debtor. He drawn my attention to Order-21, Rule-22 along with the Karnataka High Court amendment, which reads as follows: Rule-22. (1) Where an application for execution is made,- (a) (b) (c) (d) more than two years after the date of the decree, or against the legal representative of a party to the decree, or Where the party to the decree has been declared insolvent, against the assignee or receiver in insolvency, or for the execution of a decree filed under the provisions of Section 44-A of this Code. 8. The meaningful reading and understanding of the above said provision itself clears that where the
: 8 : application for execution is made more than (two years) after the date of decree or against the legal representative of a party to the decree or where the party to the decree has to be decreed insolvency or for execution of a decree filed under provisions Section 44-A, then only the Court is bound to issue notice to the judgment debtor. That indirectly goes to show that if the execution application is filed within a span of two years, there is no imperative on the part of the Court for issuance of any notice to the Judgment debtor. Proviso also shows that if such notice shall be necessary if more than two years are elapsed, but within the time the application is filed against the same person when the previous application for execution is disposed of within two years if execution petition is filed. Further, the learned counsel merely concentrated on Sub clause 3 of the said provision, wherein, the provision says that the Court is not
: 9 : precluded from issuing any process in execution of a decree without issuing the notice, if for any reasons to be recorded in writing the Court considers necessary that issue of such notice, would cause unreasonable delay or would defeat the ends of justice. However, the proviso also says that no order for execution of a decree shall be invalid owing to the omission of the Court to issue a notice as required by sub-rule (1) or to record its reasons where notice is dispensed with under sub-rule (3), unless the judgment-debtor has sustained substantial injury as a result of such omission. So far as this particular provision is concerned, it is only the discretionary power vested with the Court under Order-XXI, Rule- 22, Sub-clause 3, it is not mandatory on the part of the Court to issue such notice, but the Court can exercise the discretionary power considering the peculiar circumstances of a particular case, then only it can
: 10 : issue notice to the parties under such circumstances. Court either record its reasons for issuance of notice or record its reasons for non-issuance of the notice on the ground that if such notice is issued it would cause undue delay or would defeat the ends of justice. Of course this provision if it is not strictly complied with on that the ground itself if the execution is fully satisfied or closed such proceedings cannot be quashed or cannot held to be invalid unless it is shown to the Court that the judgment debtor has suffered substantial injury seriously due to such omission. The substantial injury as stated in the provision has to be shown to the Court that due to any irregularity or illegality or due to the conduct of any of the party to the execution petition, the Judgment debtor has suffered such substantial injury. If party is unable to show to the Court that he has sustained such substantial injury, merely saying
: 11 : that he suffered substantial injury that itself is not sufficient to draw any inference that he suffered any injury. In this background it is just necessary to revert back the factual matrix of this case. As already culled out that, decree is for specific performance, the amount of Rs.1,50,000/- remaining consideration amount has been deposited before Executing Court by the plaintiff and sought for execution of the decree. The Court looking to the said circumstance felt that the decree put into execution within one year, proceeded with the execution. It is argued that there was no such hurry to the trial Court to dispose of the execution petition within one month, but the speedy disposal of the execution petition itself is not sufficient to draw any adverse inference either against the Court or against the decree holder. Therefore, I am of the considered opinion that the above said grounds urged by the petitioner herein are not so
: 12 : strong and sufficient to quash the entire concluded proceedings before the Executing Court. 9. Last but not least, the learned counsel for the petitioner also contended that the trial Court has violated grossly the provision under Order-XXI, Rule 34, wherein, the said provision mandates the decree holder to prepare a draft of the documents to be executed in his favour and deliver the same to the Court and the Court shall thereby cause the draft to be served on the judgment debtor together with notice requiring his objections if any to be made within such time as the Court fixes in this behalf, whereunder Judgment debtor objects to the draft, his objection shall be put in writing within such time and the Court thereafter making such alteration approve or modifying the draft as thinks fit and the decree holder shall deliver the Court a corrected draft. After such alteration the Court may direct upon proper stamp
: 13 : paper if the stamp is required under law and direct for execution of the document. None of the above said proviso is followed by the Court. 10. Of course Order-XXI, Rule-34 though it is not a mandatory requirement in stricter sense, but it directs the Court to follow such procedure as contemplated under the said provision. For the purpose of understanding the said provision, it is just and necessary to meticulously extract the said provision. (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgmentdebtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
: 14 : (2) The Court shall thereupon cause the draft to be served on the judgmentdebtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes on this behalf. (3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit. (4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered. (5) The execution of a document or the endorsement of a negotiable instrument
: 15 : under this rule may be in the following form, namely:- [(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorized in this behalf by the Court, shall cause the document to be registered in accordance with such law. (b) Where the registration of the document is not so required, but the decreeholder desires it to be registered, the Court may make such order as it thinks fit. (c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration.] 11. The above said provisions mandates the Court to cause the draft to be served on the judgment debtor after the decree holder prepares the draft and
: 16 : deliver the same to the Court. Of course the judgment debtor can suggest such alterations in the draft and Court can look into the such alteration and if necessary to pass appropriate orders approving or altering the draft as it thinks fit. Therefore, the main object of this particular provision is only to see that whether the draft requires any alterations it does not give any power to judgment debtor to object for execution of the document itself. Therefore, omission to follow this provision by the Court will not totally vitiate the entire execution proceedings and it will not lead to nullity of the document executed. In this regard it is also to be noted that where the judgment debtor does not appear in the original suit, despite notice and the Court proceed against him ex-parte the provision of Order-21 Rule-34 of CPC becomes mere directory and not mandatory. As the purpose of Order-21 Rule 34 is only to correct the draft whether
: 17 : it is in accordance with the directions of the decreetal Court. On the other hand, if no such draft or the notice is served under the above said provision the judgment debtor must show that, that caused prejudice to him as the draft sale deed was not being served upon him and opportunity thereby being denied to him to file his objections against it. On careful perusal of the petition averments in this case, the petitioner has not taken up this contention and not specifically stated anything about any prejudice to him by non performance of the act as contemplated under Order-21 Rule-34 of CPC by the Court. Further, he has not stated what is the defect in the sale deed and what he would have suggested to the Court for modification of the draft if the draft would have been served upon him. Therefore, all these materials ought to have been explained in the petition so that the Court can come to a definite conclusion or
: 18 : draw any inference that the non-furnishing of the draft to the judgment debtor prejudiced him and caused severe damages to his rights. In the absence of such pleading or proof, in my opinion the nonfurnishing of the draft is not fatal and the same is not sufficient to quash the entire execution proceedings. 12. On perusal of the records, it is also seen that after the disposal of this execution petition, the petitioner has also ventured to file a petition before the same Court seeking to set aside the exparte decree passed against him in Civil Misc.4/2014 on the file of Senior Civil Judge Raibag at Raibag taluk. In the said case also he has also categorically narrated the grounds on which he has entitled for restoration of the original suit for contest. Therefore, whatever the order passed by the Execution Court is again subject to result in Civil Misc. No.4/2014. Whatever grounds that have been urged by the
: 19 : learned counsel for the petitioner before this Court are all kept open for him to urge before the said Court in Civil Misc.4/2014 or if the suit is restored. Therefore, under the above said circumstances I do not find any strong reasons to interfere with the concluded execution proceedings in EP No.36/2013. Therefore, the petition deserves to be dismissed, accordingly dismissed. Sbs* Sd/- JUDGE