ORDER
P.S. Narayana, J.
1. This civil revision petition is directed against an order passed in E.P.No. 80 of 1995 in O.S.No. 13 of 1980 on the file of the Principal District Munsif, Vizianagaram.
2. The date of the order impugned is mentioned as 18-6-1996 in the grounds of revision, but however it is pointed out that the impugned order is dated 22-6-1996.
3. The main contention of Sri Balaji representing Sri G. Venkateswara Rao, learned Counsel for the revision petitioner is that the provisions of Order 21 Rule 22 C.P.C. are mandatory and after a lapse of two years when the decree holder intends to put the decree into execution notice should have been given and without issuing notice since the delivery warrant was issued, all the subsequent proceedings taken are void and non est in law and hence those proceedings are liable to be set aside. Though all the facts are not clear from the record Sri Balaji had narrated the facts ultimately leading to the delivery of the property. The revision petitioner is the defendant in O.S.No. 13 of 1980 on the file of the Principal District Munsif, Vizianagaram and it was a suit filed by the respondent-plaintiff for recovery of possession. It was dismissed on 11-3-1985 and aggrieved by the same the plaintiff-respondent filed an appeal A.S.No. 20 of 1985 on the file of the District Judge, Vizianagaram which was allowed on 18-8-1986 and aggrieved by the same S.A.No. 605 of 1986 was filed by the revision petiitoner-defendant in the High Court of A.P. which was dismissed on 1-9-1988. Subsequent thereto on 9-11-1995 E.P.NO. 80 of 1995 was filed in O.S.No. 13 of 1980 putting the decree into execution seeking delivery of possession. Since in the E.P. without issuing notice as contemplated by Order 21 Rule 22 C.P.C. delivery was effected such proceedings are ineffective and nullity.
4. Sri Rammohan representing Sri M.S.R. Subramanyam had raised several contentions and he had brought to my notice that after the judgment in the second appeal the revision petitioner defendant filed another suit O.S.No. 623 of 1988 on the file of the District Munsif, Vizianagaram for injunction and temporary injunction was in force during the pendency of the suit and ultimately the suit was dismissed on 7-6-1995 and the E.P. was filed on 9-11-1995 which is within the period of two years. The decree holder in fact by virtue of the order of the Court was prevented during that period from putting the decree into execution. Sri Rammohan further contended that in pursuance of the delivery warrant delivery was also effected on 23-6-1996 and hence virtually the civil revision petition became infructuous. Apart from it, Sri Rammohan also had drawn my attention to the relevant provisions of Order 21 Rule 22 C.P.C. A.P. Amendment. The relevant proviso reads as follows:
(2) Nothing in Sub-rule (1) shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
Provided 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 the result of such omission.”
It is contended by Sri Rammohan that in view of the A.P. Amendment it cannot be said that the proceedings are vitiated by mere non-compliance of the issuance of notice under Order 21 Rule 22 C.P.C. It was further contended that even otherwise it cannot be said to be mandatory but at the best it is a curable irregularity. Sri Rammohan also had drawn my attention to the object of incorporating Order 21 Rule 22 C.P.C.
5. Having heard both parties, I am satisfied that the material available on record is not sufficient for the purpose of arriving at the just conclusion in the matter. It is no doubt true that in Rajagopal Aiyar v. Ramanujachariar, AIR 1924 Mad. 431 and Official Receiver, Nellore v. Venkataiah, AIR 1941 Mad. 606 it was held that a sale held without service of notice as required by Order 21 Rule 22 C.P.C. is void. In Madappa v. Lingappa, it was observed as follows:
“Thus, it appears to me that the simple non-issuance of a cause notice as contemplated by Order 21 Rule 22 C.P.C. may not be a sufficient circumstance to render the sale a nullity, provided the judgment-debtor was aware of the execution proceedings and had an opportunity to participate in the proceedings. Similar is the view expressed by the Kerala High Court in A.K. Narayanan Nambiar v. State of Kerala . It has been also laid down in Mithalal v. Kapoorchand, that the simple omission to issue notice under Order 21 Rule 22 C.P.C. was not fatal to the execution proceedings and by itself was not sufficient to render null and void the sale. In this case, the execution in question was admittedly sued out after the expiry of two years from the date of the decree. Hence the notice within the meaning of Order 21 Rule 22 C.P.C. was required to be issued and served on the judgment debtor. But as already stated above, the simple non issuance of the cause notice as required by Order 21 Rule 22 C.P.C. is not sufficient to render null and void the sale.”
In Amirennissa v. Ananda Chandra, AIR 1935 Cal. 356 such a sale was held to be not void but voidable for want of notice under Order 21 Rule 22 C.P.C. In the light of the amendment to Order 21 Rule 22 C.P.C. the rigor of the mandatory nature of the main provision had been watered down. However, Sri Balaji had drawn my attention to Muthammal v. Kaveriammal, wherein it was observed as follows:
“In the present case the dismissal of the execution petition on 31-8-1983, cannot be said to be an order against the judgment debtor. As a matter of fact, the dismissal of an execution petition would be an order in favour of the judgment debtor. Since the order dated 31-8-1983 could not be said to have been passed against the judgment debtor, the decree holder in the instant case, is not entitled to the benefit of the proviso. The executing Court was, therefore, right in taking the view that a notice of the execution proceedings was necessary to the judgment-debtor because the execution petition has been filed beyond the period of two years from the date of the decree sought to be executed.”
The learned Counsel for the petitioner also had relied upon Ramanamma v. Chandra Rao, AIR 1975 NRC 75. It is no doubt true that the opinion expressed in these decisions support the contention raised by the revision petitioner. But however, from the material available on record since all the facts are not clear and inasmuch as it is brought to my notice that the E.P. proceedings were closed long back it may be just in the facts and circumstances of the case to remit the matter back to the Court below and the Court below shall decide the objection raised by the revision petitioner by examining all the facts and circumstances and also examine whether the ingredients under the A.P. Amendment to Order 21 Rule 22 C.P.C. are satisfied or not.
6. Civil Revision Petition is disposed of with the above directions. Each party to bear their own costs.