LAWS(MAD)-2010-2-22

SUNDARI Vs. SWARNAMMA

Decided On February 03, 2010
SUNDARI Appellant
V/S
SWARNAMMA Respondents

JUDGEMENT

(1.) The plaintiff in O.S. No. 644 of 1977, on the file of the District Munsif Court, Kuzhithurai is the revision petitioner. In the Suit in O.S. No. 644 of 1977, a preliminary decree was passed on 08.02.1983. The same was confirmed in S.A. No. 206 of 1994 and the SLP was filed against that and that was also dismissed on 01.10.2004. Thereafter, final decree was passed on 03.09.2009. Therefore, the petitioner filed the Application for execution of final decree in E.P. No. 118 of 2009 making the respondents as parties to the proceedings. The learned District Munsif ordered notice to the respondents and also to the caveator through Court and posted the matter on 05.02.2010 and the issue of notice to respondents is challenged in this Revision.

(2.) Mr. K.N. Thambi, learned counsel for the petitioner submitted that under the provisions of CPC no notice is contemplated, when E.P. is filed within a period of two years and as per CPC, notice is contemplated under Order 21, Rule 16 & 22; Order 5, Rule 1; and Order 41, Rule 5 of C.P.C. Except the aforesaid provisions the Courts have no power to order notice to the respondents. He further submitted that as per Order 21, Rule 22, when the Execution Petition is filed after a period of two years from the date of decree, notice has to be given to the respondents and in this case, E.P. was filed within two years from the date of decree passed by the final decree and hence, the Lower Court erred in issuing notice and that is liable to be quashed.

(3.) According to the learned counsel for the petitioner, the Court has no jurisdiction to issue notice and the Court had exceeded its jurisdiction by ordering notice in the Execution Petition filed by the petitioner and therefore, the order of Lower Court in issuing notice can be interfered with the under Article 227 of the Constitution of India. He relied upon the judgment, reported in Hazrath Imam Hussain Wakf, rep. by its Muthavalli, Mr. Aga Zulfikar Ali @ Afzal Aga, Chennai v. Nayeema Adib,2006 4 MadLJ 190, to the effect that in the event of an 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 refused to vacate the property and there is no necessity for the Court to issue notice to the judgment-debtor. Therefore, he contended that there is no necessity for the Lower Court to issue notice and by ordering notice, the trial will be prolonged and for more than 20 respondents, notice to be served. He further submitted that the Presiding Officer is biased as the husband of the petitioner, who is a Senior Counsel at Nagercoil wrote a letter to the Secretary of the Bar Association, Kuzhithurai as against the Presiding Officer of the Principal District Munsif Court Kuzhithurai, and therefore he is biased and only on the basis of the bias, he has issued notice.