MUTHAMMAL Vs. KAVERIAMMAL

JUDGEMENT

(1.) The plaintiff-decree holder, who is the petitioner in both the revision petitions, had filed a suit for possession of immovable property in which she had obtained a decree as far back as on 5-12-1972. The first appeal filed by the judgement-debtor came to be dismissed on 6-12-1974, and the second appeal filed by her also came to be dismissed on 20-7-1978. The decree holder then took steps to execute the decree and filed an execution petition on 14-7-1983. It was posted on 25-8-1983, but since the decree-holder did not take any steps to have the notice served on the judgement-debtor, it was dismissed on 31-8-1983. On the same day, the decree-holder filed another execution petition and obtained a warrant for possession. The possession of the property was also delivered on 8-9-1983. The judgement-debtor filed an application before the executing court that the delivery of possession should not be recorded because, the order for delivery of possession was made without issuing a notice to her as required by O.21, R.22, C.P.C. This application has been allowed and the execution proceedings were closed. This order of the learned Subordinate Judge, Udumalpet, is challenged in these revision petitions.

(2.) The learned counsel appearing on behalf of the judgement-debtor did not dispute the fact that if a decree was to be executed more than two years after the date of the decree of the second appellate court, a notice to the judgement-debtor was necessary, if the first execution petition was filed after more than two years from the date of the decree. But he placed reliance on the proviso to O.21, R.22, C.P. Code, which reads as follows

(3.) When this contention is advanced, it is obviously overlooked that the period of two years from the last order contemplated by the proviso is not from the date of the decree but only from the date of the last order which is against the person against whom execution is applied for. The effect of the proviso, therefore, is that even though execution proceedings are taken beyond the period of two years from the date of the decree, if the execution petition is filed within two years from the date of the last order against the judgement debtor, then no notice as required by O.21, R.22, C.P. Code need to be served. In other words, only if the last order is against the judgement debtor, then only liberty is given to apply for execution within a period of two years from that date and a fresh notice is not necessary in view of the proviso to O.21, R.22, C.P.C. The proviso to O.21, R.22, C.P.C. will not be attracted in the instant case, when the first execution petition was itself filed beyond a period of two years from the date of the decree and it was dismissed even without notice to the judgement-debtor.