NAVAL KISHORE Vs. NEKSEY

JUDGEMENT

(1.) The instant petition under Article 227 of the Constitution of India is preferred against the proceeding dtd. 25/11/2024 passed by 16th Civil Judge, Junior Division, Gwalior in Executing Case No.75/2024, whereby on an application preferred by one of the legal representatives of deceased tenant, the Executing Court has directed to get the service effected on the other legal representative when admittedly as per provisions of Order 21 rule 12 of the Code of Civil Procedure, 1908, no notices were required to be issued. Further, learned counsel while placing reliance in the matter of Kanji Manji v.The Trustees of the Port of Bombay reported in AIR 1963 SC 468 ; had contended that notice to the one of the co-tenant would be sufficient, as the present respondents are legal representatives of the original tenant i.e. Neksey, s/o Shri Jugtiram and since one of legal representatives of respondent No.2 had already been served, the trial Court should have proceed to decide the said execution.

(2.) After hearing learned counsel for the petitioner, this Court finds force in his arguments, as firstly under Order 21 Rule 22 CPC notices were required to be issued to a person against whom execution is applied for requiring him to show cause as to why the decree should not be executed, if the application for execution is made after more than two years from the date of a decree and as herein case the date of judgement and decree is 29/1/2024 and application for execution was filed on 6/5/2024, which was well within a period of two years, therefore, no notices were required to be issued to the judgement debtor. Otherwise also, as per the dictum of the Apex Court in the matter of Kanji Manji v.The Trustees of the Port of Bombay (Supra); when present respondents No.1 and 2 are joint tenant holders/judgement debtors, then service of notice to any one of them could be sufficient and as no notices are required to be issued to others. Be that as it may, notices were directed to be issued and were served upon one of the legal representative/judgement debtor, therefore, the Executing Court was required to proceed in the matter instead of directing further issuance of notice to the unserved judgement debtor.

(3.) After considering as aforesaid, this Court deems it expedient to direct the Executing Court to get the decree executed as expeditiously as possible within a period of three months from the date of receipt of certified copy of this order.