BHAKTAVASTHALAM Vs. C VIMALAMMA

JUDGEMENT

(1.) This revision is before the Division Bench on a reference made by one of us Hon'ble Sri Justice P. Ramakrishnam Raju while sitting single regarding the correctness of the decision of the learned single Judge in A.P. Transport Co. Vs. G. Thosniwal (1) 1982 (2) APLJ 291 as to whether notice is necessary for condoning delay of an Execution petition, filed beyond six months, under Rule 23(1) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961, hereinafter referred to as "the Rules". In the reported decision view has been taken by the learned single Judge, interpreting the provisions of Rule 23 of the Rules, that the scheme of rule does not envisage notice to be issued for condonation of delay in the application but since Hon'ble Sri Justice P.Ramakrishnam Raju entertained doubt about the decision and referred the matter to a larger Bench, the case is before us.

(2.) There is no dispute that the application for execution was filed with delay of more than one year and the learned Rent Controller condoned the delay without notice to the tenant. The revision has been filed assailing the condonation. The learned single Judge while deciding the A.P.Transport case (1 supra) was of the view that reading of sub-rules 1 to 4 of Rule 23 of the Rules makes it abundantly clear that the Legislature did not intend to enact a provision enabling the judgment-debtor to have a notice before the execution is ordered and that is so even if the execution is levied beyond 6 months. Even where an execution petition is filed within time, no notice is contemplated to be given to the judgment-debtor before execution is ordered and that the only contingency in which notice is contemplated to be issued is as provided under Rule 23(4), which would by necessary implication mean that no notice is necessary in other cases and that execution can be ordered without notice when it has been filed in time. The learned Judge also juxtaposed the provisions of Rule 23 with the provisions of Order XXI Rule 22 CPC and was of the view that since the provisions of the Code of Civil Procedure make specific provisions for issue of notice when the application had been filed more than two years after the decree, the absence of such a provision in Rule 23 goes to show that the Legislature did not intend notice to be issued before condonation of delay is ordered.

(3.) Differing with the views taken, the view was taken in the referring order that if no opportunity is to be given to the judgment-debtor to oppose condonation of delay, it would virtually amount to call upon the Rent Controller to uniformly condone delay in all cases as he would be called upon to decide sufficiency or otherwise of the materials placed before him for condonation of delay without any rebutting material. The further view taken was that expiry of limitation in filing of the application creates a vested right in the judgment-debtor and that such a right of his cannot be taken away without affording opportunity to him, as that would be in violation of principles of natural justice.