ORDER
A. Gopal Reddy, J.
1. The petitioners – judgment-debtors filed this revision questioning the correctness of the Order dated 29-3-2005 passed by the learned Principal Junior Civil Judge, Kurnool in E.P.No. 508 of 2004 in O.S. No. 19 of 1993.
2. In spite of service of notice on the respondents, none appears. Hence they are set ex parte. Initially, the respondents -decree holders filed the suit O.S.No. 19 of 1993 on the file of the learned Principal Junior Civil Judge, Kurnool for declaration of title and for possession which was dismissed by the trial Court. Aggrieved by the same, A.S.No. 90 of 1998 was filed by them before the learned III Additional District Judge, Kurnool and the same was allowed in part decreeing the suit for possession on the decree holders depositing Rs. 15,000/- within one month from the date of the decree i.e., 28-2-2000. On such deposit, the petitioners – judgment-debtors were directed to handover the possession to the respondents – decree holders within three months from the date of deposit. S.A.No. 441 of 2000 preferred by the petitioners – judgment-debtors before this Court against the judgment in A.S.No. 90 of 1998 was dismissed for default on 2-8-2002. The respondents – decree holders filed E.P.No. 508 of 2004 after two years and four days from the date of dismissal of the second appeal in which the Executing Court passed the impugned order as under :
For steps against R2-R3 unserved non-Residents. Delivery Batta not paid. Batta paid with petition. Allowed. Issue delivery warrant. Call on 5/5/05.
3. Questioning the legality and validity of the said order, the present revision is filed.
4. Learned Counsel for the petitioners would contend that the order passed by the trial Court is contrary to Order XXI Rule 22 CPC as no notice was ordered before issuing the delivery warrant. He would further contend that when once the Court ordered to take steps for service of notices upon the judgment-debtors, delivery warrant cannot be issued until such service is effected.
5. When the revision petition has come up for admission on 20-12-2005, this Court called for a report from the trial Court as to whether the E.P. was filed within two years from the date of the dismissal of the second appeal or not, and whether delivery warrant was issued without service of notice on the judgment-debtors and if so, the warrant has been executed or not. In response to the same, the learned Principal Junior Civil Judge, Kurnool submitted his report on 29-12-2005 stating that the E.P. itself was filed after two years and four days from the date of disposal of the second appeal and his predecessor ordered notice under Order XXI Rule 35 CPC to judgment- debtors 2 and 3. That no notice under Order XXI Rule 22 was ordered. Again on 15-9-2004 when the matter has come up for hearing, notice under Order XXI Rule 35 was issued as decree holders failed to pay batta on the previous adjournment and the matter was posted to 2-12-2004. On the said date, office had put up a note that notice on judgment-debtors 2 and 3 was not served as they are nonresidents in the E.P. address. Then, his Predecessor ordered for steps and delivery of property posting the matter to 27-1-2005. On the said date, the Counsel for the decree holders filed a petition to condone the delay in payment of batta for delivery of property which was allowed posting the matter to 29-3-2005. On 29-3-2005, the decree holders represented batta for delivery warrant with a petition and the same is allowed which is impugned in the revision. On 5-5-2005, office had prepared a note that delivery warrant was returned as not effected due to lock of door as per Amin’s Report dated 4-5-2005 and accordingly, the matter is posted for steps and adjourned to 27-6-2005 and on the said date, delivery warrant was issued posting the E.P to 24-8-2005 and so far the delivery warrants are not executed on the judgment-debtors and that the same are pending execution.
6. Order XXI Rule 22 CPC mandates issuance of notice to the person against whom execution is applied for, requiring him to show-cause on a date to be fixed as to why the decree should not be executed against him, if an application for execution is made more than two years after the date of the decree. As per Sub-rule (1) if the E.P is not filed in time, the decree holder cannot take the aid of proviso to Sub-rule (1) of Rule 22. Order XXI Rule 22(2) will not preclude the Court from issuing any process in execution of the decree without I issuing the notice thereby prescribed under Sub-rule (1), if for reasons to be recorded, it considers that the issuance of such notice would cause unreasonable delay or would defeat the ends of justice. The proviso added to the same as applicable to the State of Andhra Pradesh further declares that no order for execution of a decree shall be invalid owing to the omission of the Court to record its reasons unless the judgment-debtor has sustained substantial injury as a result of such omission. What is substantial injury which can be shown by the judgment-debtor depends on the facts of each case. When Order XXI Rule 22(1) CPC itself mandates issuance of notice to the judgment-debtors whenever an application for execution of the decree is made more than two years after the date of decree, failure to issue the said notice itself causes substantial injury since the procedure prescribed has not been followed and therefore, the judgment-debtors are deprived of an opportunity to resist the execution. The petitioners herein allege that the property is in the occupation of the tenants, more so, on the dismissal of the second appeal for default for non-payment of batta, a petition is filed by them to condone the delay in payment of batta which is pending adjudication before this Court and the trial Court initially ordered notice under Order XXI Rule 35 to the judgment-debtors and without effecting service, issuance of delivery warrant itself discloses that the property is in the possession of the tenants.
7. Dispensing with the notice under Sub-rule (1) can be resorted to only if the Court considers that issue of such notice would cause unreasonable delay or would defeat the ends of justice. But dispensing with the notice cannot be axiomatic since there is nothing on record to show that the Executing Court satisfied that issuance of notice causes unreasonable delay or would defeat the ends of justice. Therefore, the order of the lower Court straightaway issuing delivery warrant for delivery of the property without following the mandatory procedure suffers from illegality in exercise of its jurisdiction and the same cannot be sustained. The impugned order is accordingly set-aside and the lower Court is directed to follow the prescribed procedure by issuing notice under Sub-rule (1) of Rule 22 of Order XXI CPC and can proceed with the matter.
8. The civil revision petition is accordingly allowed.
