EFFICIENT PUBLICITIES (P) LTD. Vs. STATE OF MADRAS

JUDGEMENT

(1.) This appeal is against the dismissal of an execution petition filed by the appellant under O. 21, R. 43, C.P.C. for attachment of the moveables belonging to the respondent Government. It was contended by the respondent that the execution petition was not maintainable inasmuch as the mandatory provisions of S. 82, C.P.C., had not been followed.

(2.) The Lower Court accepted that contention and dismissed the execution petition as not maintainable. It is now contended that the lower Court cared in dismissing the petition as not maintainable.

(3.) Under S. 82, C.P.C., where in a suit by or against the Government, a decree is passed against the Union of India or a State, a time shall be specified in the decree with in which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the State Government. Sub -Sec. (2) says that execution shall not be issued on any sues decree unless it remains unsatisfied for the period of three months computed from the date of such report. Now, in this case, a decree was passed on 20th July, 1971. No time was specified in the decree, within which the decree should be satisfied. Therefore under sub -Sec. (1), the Court shall report the case for orders of the State Government if the decree is not satisfied within three months from the date of the decree. The Court did not, however, do so until the execution petition was filed on 20th December, 1971 However even though the decrees was (sic) than two years old, notice was issued to the respondent judgment - debtor. Even than, no report was made to the Government as required by sub -S.(1) of S.82. Even assuming that the notice so given to the respondent could be construed as a report to the Government even then under sub -Sec. (1), execution shall not be issued for a period of three months from the date of such report. It has been held in Pakanati Vakula Bharanam Naidu v/s. The Union of India, (1964) I.A. W.R. 34 that from a perusal of Sec. 82 (2), C.P.C., it is evident that a duty is cast on the Court to report the case for orders of the State Government, in case the decree is not satisfied within the stipulated period or within three months from the date of the decree and that the decree -holder is not saddled with this responsibility. On that ground, it was held that the decree -holder could not be deprived of the costs to which he was entitled. In this case, the lower court bad failed to report the case for orders of the State Government, and even after the execution petition was filed, it did not report the matter for orders of the Government; but merely issued a notice to the Government. It must also be noted that no application was made by the decree -holder, requesting this Court to make the report under S. 82(1). The learned Counsel for the appellant has, however, argued that construing the notice that was issued to the respondent to show cause against execution as a report under Sub -S. (1) of S. 82 C.P.C., a period of three months should be computed and since in this case the execution petition was dismissed only on 6th April 1972 long after the expiry of the period of three months, the lower Court should not have dismissed the execution petition but should have issued execution. But, then the notice ordered both J.D. on eviction petition, cannot be construed as, or take the place of the statutory report required to be sent under sub S.(1) of S.82. Sub S.(2) clearly states that execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of the report to be given under sub -S.(1). Inasmuch as till the execution petition was dismissed no such report was sent by the Court for orders of the Government, the lower Court has rightly dismissed the execution petition. The appellant can always after such a report is sent and after the expiry of the period, file a fresh execution petition. The proper thing which the lower Court should have done in this Batter is that as soon as the execution petition was presented, it should have kept the petition without numbering it and made the report required under S. 82 (1) and after waiting for three months if the decree was still not satisfied, numbered the execution petition and then proceeded to issue execution. If that had been done, this complication would not have arisen. But, inasmuch as owing to the fault of the Court, such a situation had arisen which necessitated the dismissal of the execution petition, the lower Court should not have directed the appellant to pay the costs of the execution petition to the respondent. On the other hand the appellant should have been granted costs of that execution proceeding. Hence, the order of the lower Court directing the appellant to pay the costs of his execution petition to the respondent, is set aside. With this direction, this appeal is dismissed. There will be no order as to costs in this appeal.