JUDGMENT
P.K. Deb, J.
1. This Revision petition has been preferred by the above-named judgment debtor-petitioner in Execution Case No. 4 of 1995 against the order dated 6.5.1995 passed by Shri N.C.Gupta, Sub-Judge, Vth, Inchargc, Jamshedpur, whereby and whereunder a writ of delivery of possession was issued for affecting the delivery of possession by deputing the police force.
2. Title (Eviction) Suit No. 60 of 1986 was filed by the Opposite Party against the petitioner for a decree of recovery of possession of the suit premises after evicting the defendant. The suit was decreed on 30.7.1994 and decree was signed on 18.8.1994. Against that judgment and decree, the petitioner filed Eviction Appeal No. 22 of 1994 before the court of District Judge, Jamshedpur and also filed a Caveat under Section 148-A C.P.C. on 7.10.1994 before the Court of Sub-Judge, Vth. In that Caveat proceeding, orders were passed, which has been annexed as Annexure-1. It was ordered and directed to the office that the Caveat should be put up as and when Execution case would be filed. In the order itself, it was mentioned specifically that an Eviction Appeal No. 22 of 1994 was pending before the District Judge, Jamshedpur, but curiously enough on 4.5.1995, the Opposite Party filed an Execution case for executing the decree being Execution Case No. 4/95. It was registered on 5.5.1995 and a report was called for from the Shrestidar and order was passed to be put up on 6.5.1995. It appears on the back side of the, Execution petition, Shrestidar gave a note that no caveat petition, was filed by the judgment debtor. Accordingly, on 6.5.1995 on a prayer being made from the side of the decree holder, writ for deliver of possession was issued alongwith police force for effecting delivery.
3. During the course of argument at the admission stage, Mr.K.S. Mazundar-appearing for the judgment debtor, has fairly conceded that already delivery of possession has been made and this revision petition became infructuous and he has already instructed his client to proceed for getting restitution of possession through the court during the pendency of the appeal. But, he further submitted that this Court must interfere with the order of delivery of possession as the same was passed not only in haste but with ulterior motive as is apparent on the face of it.
4. It is true that this Revision petition has become infructuous because of the delivery of possession being effected but considering the nature of argument, it is felt necessary to see the records of the case and as such the records were called for through Joint Registrar and the same was persued and scrutinised. The trend of filing of the Execution petition on Friday and getting the delivery of possession by Sunday next goes to show that the same was done with definite intention of getting the delivery of possession ex parte without being interfered by the Judgment debtor.
From the impugned order, it transpires that the learned Executing Court allowed delivery of possession without notice to the judgment debtor under Order 21 Rule 22 C.P.C., the Execution case was filed within two years from the date of decree and as such the judgment debtor was not entitled for notice in the Execution proceeding but it appears that the learned court below has not considered the fact of amendment of the Provisions of Rule 22 of Patna which was made by Notification No. 98-B/XII-6-47 dated 8.5.1947 wherein it was inserted in the Sub-rule (1) of Rule 22 in the following manner :
Where an application for execution is made in writing under Rule 11(2), the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him and there was also adding of Sub-rule (3) in the following manner:
(3) Proceedings held in execution of decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under Sub-rule (1) or to record reasons where such notice is dispensed with under Sub-rule (2) unless the judgment debtor has sustained injury thereby.
5. The present execution petition was filed definitely under Order 21 Rule 11(2), but as it was within a period of two years as contained in the said provisions, the notice was dispensed with. There might be some sense in that way but the fact remains that before a Execution case was filed, a Caveat was there under Section 148-A of the C.P.C. and there was specific order by the 5th Sub-Judge, Jamshedpur of putting up the Caveat as and when Execution case is filed but due to manipulation or by over sight the Caveat petition was not placed and a false report was submitted to the effect that no Caveat was there. Normally against an Eviction decree, appeals are filed and there are stay orders from the appellate court. It is not known whether by that time, there was stay order from the appellate court or not. It might be that there was delay in getting the stay order from the appellate court and for that reason and for better precaution, a petition under Section 148-A C.P.C. was filed before the Court which passed a decree. But, the evil luck prevailed the Caveat was not put up with the records and a false report was submitted by the Shrestidar that no Caveat was filed. Moreover, it appears that on 6.5.1995 when the impugned order of delivery of possession was issued, the Presiding Officer of that court was absent and Shri N.C. Gupta was Incharge of that Court and he passed the order of delivery of possession.
6. Definitely, as it appears there is some manipulation in the office in getting the writ issued for delivery of possession under hot haste. The Execution petition has been disposed of within 3-4 days which is very much doubtful when it is commonly said that “It is easy to get a decree then to get the decree executed” Perhaps because of the incumberred provisions of C.P.C. under Order 21. There are various provisions and protection laid down by the Legislators for avoiding injustice to the judgment debtor in executing the decree, but everything was done behind the back of the judgment debtor without his knowledge, although he is proceeding with the Eviction case in the appeal before the District Judge.
The procedure followed in the present case is definitely uncalled for and unwarranted.
Now the question comes in whether Section 148-A of the Code of Civil Procedure is applicable in Execution Proceedings or not.
7. Section 148-A has been included in the Code of Civil Procedure by the Amendment Act 104 of 1976. This has been introduced for the useful purpose of intimating to the court by a party of his intention to have notice of an intended application by the adverse party so that ex parte order may hot be passed without the notice and this Caveat remains in force for a period of 90 days. In the present case, perhaps 90 days have been lapsed but if that would have been ground for which dispensing of notice was made by the learned Executing court then there perhaps might be such grievance from the side of the petitioner-judgment debtor, but it is also required that when a Caveat proceeding is there and when there is specific order to the affect that the same should be put up as and when the Execution case is filed and when no time limit was fixed then the same ought to have been placed before the court before passing of the order of dispensing with notice. But, that has not been done. Curiously enough in the Execution case record, I could find that Caveat petition is lying so the mischief caused was an intentional one and not by over sight.
8. As regards Caveat under Section 148-A, it can be made in a suit or proceeding instituted, or about to be instituted in a court, Now, whether the same includes Execution proceeding also is required to be scrutinised.
By analogy of Section 141, a suit or proceeding as mentioned in Section 148-A, Execution proceeding may be well included, but Bombay High Court in Nav Digvijaya Co-operative Housing Society Ltd. v. Sadhana Builder and ors. has decided that Caveat is not applicable in an Execution proceeding where an order has been passed under Order 21 Rule 43 and 54, but in that decision, it has not been decided whether the Execution proceeding is to be totally ruled out of writ of under Section 148-A of the C.P.C. Rather, from the way it has been decided, it can be held that by sub-silention they have admitted the position that Section 148-A is also applicable in the Execution proceeding but that might not be applicable for the purpose of orders to be passed under Rules 43 and 54 where adverse party has got no scope of being heard.
Allahabad High Court has held in general as reported in Chandrajit and Anr. v. Smt. Ganeshiya and Ors. that Caveat as contemplated under Section 148-A cannot be made restricted to original proceedings only but it should be applicable to Execution proceeding as well.
9. There are two pre-conditions for application of Section 148-A of the C.P.C. that the petition must be filed in a suit or proceeding or intended suit or proceeding when the petitioner applying have a right to be heard and that the life time of the Caveat petition is 90 days. So the first and foremost thing is regarding the qualification of the petitioner, whether he is a person to be heard in the proceeding or not.
10. For a petition under Order 21 Rule 11(2) C.P.C. the petitioner i.e. the Judgment debtor has got a right of being heard under Rule 22 C.P.C. but the notice may be dispensed with in some circumstances as contemplated under Sub-Rule 1 itself, but it appears that by Patna Amendment that has been made rather compulsory for giving notice unless the same is dispensed with as per Sub-Rule-2. Attachment in Execution proceedings etc. is under Rules 43 and 54 which may not have a vital affect on the interest of the judgment debtor but writ for delivery of possession in the ultimatum closure of the Execution proceeding to the detriment of judgment debtor affecting his right to be heard anymore but for attachment he may have say before the Execution court and in that sense if the suit for eviction was still pending in appeal then the same must be brought into the notice of the Executing court and to decide whether during the pendency of the appeal also, the Execution proceeding should continue or not and this matter can be brought into the notice of the Executing court by way of Section 148-A C.P.C. and the judgment debtor might be heard before the issue of writ for delivery of possession. The judgment debtor in the circumstances have got every right to be heard and as such in my view Section 148-A C.P.C. is generally applicable in Execution proceedings under Order 21 C.P.C. but some provisions under the different Rules of Order 21 might not be attracted, for application of Section 148-A C.P.C. where the petitioner has got no right or occassion to be heard by the Court passing the order. But, in the present proceeding, as mentioned above, and the circumstances stated the petitioner had a right to be heard unless other provisions of Section 148-A C.P.C. were complied with. The life time of Caveat might have ended but due to the order passed by the court receiving the same, had not limited to it and in that sense it ought to have been the duty of the executing court to give a notice to the judgment debtor before signing the rate for delivery of possession.
11. It might be argued that the life time of the Caveat had already expired when the writ of delivery was signed and as such the petitioner was not entitled to have a notice and as such the notice was dispensed with, but that is not the case in the present circumstances. Here, there was suppression of the Caveat in toto and although the Caveat petition was lying in the record itself, it was the bounden duty of the executing court to peruse the same without relying on the report of Shrestidar. Moreover, such sort of issuance of writ through the court, who was Incharge of that executing court on the relevant date raised eye brows definitely.
12. In the facts and circumstances and the legal position as stated above, the revision petition is rejected with observation that the judgment debtor should pursue the Executing Court and the appellate court for getting redressal of his grievance. District Judge, Jamshedpur is hereby asked to make a thorough enquiry in the light of the observations made in the order and to give a report in the Administrative capacity as early as possible and erring official or the personnel may be proceeded with according to law.
Let the records of the Execution Case be sent immediately to the District Judge, Jamshedpur alongwith a copy of this Order.