M ANASUYAMMA Vs. B BALARAMACHANDRA RAO

JUDGEMENT

(1.) THE petitioner is the first judgment-debtor. E.A. was filed objecting to the execution on several grounds. One of the grounds is that notice as required under Order 21 Rule 54 (IA) of the C. P. C has not been served on the petitioner on the day fixed for settlement of the proclamation of sale. THE Court below found that notice was served by substituted service by affixture on 24-8-1982, THErefore, there is sufficient service. This finding is belied by the 'B' diary proceedings of the executing Court. Though substituted service was effected on 24-8-1982, the Court did not accept by its proceedings dated 6-8-1982 and directed to take out fresh notice by registered post with acknowledgement. THE matter was adjourned from time to time from 11-10-982 to 4-2-1983 on which date a counsel has appeared for the petitioner and for engaging the counsel, a memo was asked to be filed on the next day. Under those circumstances, though Order 21 Rule 54 (IA) postulates that the notice shall be served requiring the judgment- debtor to attend Court on a specified date fixed for settling the terms of the proclamation of sale, brought by C. P. C. Amendment Act 1976 is mandatory, the petitioner having engaged a counsel who appeared for her before the notice is served, the need to serve the notice is obviated. THErefore, the mandatory requirement must be deemed to have been complied with.

(2.) IT is next contended that what is sought to be sold is 1/ 3rd share in the open site on which a cinema theatre-Jaihind Talkies, is running. That statement is a vague statement. The material particulars with regard to right, title, and interest of the lessee has not been stated; therefore the sale cannot be ordered. I am unable to agree Admittedly, M. N. Sarma, is possessed of r/3rd share in the open site on which the lessee has constructed the theatre. Therefore when the property is sought to be sold, the right, title and interest of the judgment-debtor in the open site is ascertained and sought to be sold. Therefore, there is no ambiguity in the order. Therefore this objection has been rightly over-ruled. However, having reganrd to the circumstances of the case; four months time from today is granted to pay the balance of the decretal amount since the petitioner had already paid a part of the E. P. amomunt under the interim direction given by this Court. The C. R, P. is accordingly dismissed with the above observation. No. costs.