Case Note & Summary
The petitioners, Dada Balu Rooge and Smt. Vasundara, were judgment debtors in Execution Petition No.73/2014 pending before the Principal Senior Civil Judge, Chikkodi. The respondents, Appasaheb Kiran Keste and Suresh Nemgouda Patil, were decree holders who had obtained a decree for specific performance in O.S.No.65/2010, directing the petitioners to execute a sale deed in respect of suit land based on an agreement of sale dated 29.03.2008. During execution proceedings, the respondents filed IA No.2 seeking delivery of possession of the suit property. The execution court allowed IA No.2 on 23.04.2021 and issued a delivery warrant without issuing any notice to the petitioners. The petitioners challenged this order and the delivery warrant before the High Court under Articles 226 and 227 of the Constitution of India. The High Court examined the provisions of Order XXI Rule 22 of the Code of Civil Procedure, 1908, which mandates that before executing a decree for delivery of possession, the court shall issue notice to the judgment debtor. The court noted that the execution court had failed to comply with this mandatory requirement, thereby violating principles of natural justice. The High Court held that the order allowing IA No.2 and the consequent delivery warrant were illegal and liable to be set aside. The writ petition was allowed, the impugned order dated 23.04.2021 was quashed, and the delivery warrant was set aside. The execution court was directed to proceed afresh after issuing proper notice to the judgment debtors.
Headnote
A) Civil Procedure - Execution of Decree - Delivery of Possession - Order XXI Rule 35, Order XXI Rule 22, Section 47 CPC - The execution court allowed IA No.2 and issued a delivery warrant without notice to the judgment debtors. The High Court held that before delivery of possession, notice under Order XXI Rule 22 CPC is mandatory, and failure to issue such notice vitiates the proceedings. The order dated 23.04.2021 and the delivery warrant were quashed. (Paras 1-10) B) Civil Procedure - Execution of Decree - Notice to Judgment Debtor - Order XXI Rule 22 CPC - The court held that the requirement of notice under Order XXI Rule 22 is a fundamental principle of natural justice, and any order passed without such notice is a nullity. The judgment debtors were entitled to be heard before the execution court could proceed with delivery of possession. (Paras 5-8)
Issue of Consideration
Whether the execution court could order delivery of possession of immovable property without issuing notice to the judgment debtors under Order XXI Rule 22 of the Code of Civil Procedure, 1908.
Final Decision
The writ petition is allowed. The order dated 23.04.2021 allowing IA No.2 and the delivery warrant issued in EP No.73/2014 are quashed. The execution court is directed to proceed afresh after issuing proper notice to the judgment debtors.
Law Points
- Order XXI Rule 35 CPC
- Section 47 CPC
- Order XXI Rule 22 CPC
- Notice before delivery of possession
- Execution proceedings
- Judgment debtor's right to be heard
