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SCA/7709/2009 7/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7709 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SUDHIR
VADILAL SHAH & 1 - Petitioner(s)
Versus
LIFE
INSURANCE CORPORATION OF INDIA - Respondent(s)
=========================================================
Appearance
:
MR
MANISH M KAUSHIK for
Petitioner(s) : 1 - 2.
NOTICE SERVED for Respondent(s) : 1,
MR
BY MANKAD for Respondent(s) :
1,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 18/01/2010
ORAL
JUDGMENT
Rule.
Mr.B.Y.Mankad, learned advocate,
waives service of notice of Rule on behalf of the respondent. On the
facts and in the circumstances
of the case, and with the consent of the learned counsel for the
respective parties, the petition is being heard and finally decided
today.
This
petition has been preferred under the provisions of Articles 226 and
227 of the Constitution of India with a prayer to quash and set
aside order dated 08.07.2009, passed by the Executing Court in
Special Execution Petition No.116 of 2006, whereby a warrant for
attachment and sale of the property of the petitioners, under the
provisions of Order 21, Rule 30 of the Code of Civil Procedure, 1908
( the Code ) has been issued.
The
brief facts of the case are that the petitioner No.1 was serving in
the Accounts Department of the respondent
Corporation since 1983 and, during the tenure of his services,
he requested the respondent-Corporation for a housing loan, under
the Individual Employee Housing (Flat) Scheme. A sum of
Rs.1,27,000/- was sanctioned and disbursed to the petitioner No.1
for purchasing a flat, with interest @ 5.25% per annum.
Subsequently, the services of the petitioner No.1 came to be
terminated in the year 1998 as, according to the
respondent-Corporation, he along with others, was involved in a
theft that took place in the office premises where he was serving.
After termination of his services, the petitioner No.1 could not
repay the loan amount. The respondent-Corporation filed Special
Civil Suit No.194 of 1999 for recovery of a sum of Rs.1,34,211=72
ps. with interest @ 15.25% per annum. The petitioner No.2 is the
wife of petitioner No.1. According to the petitioners, though they
had instructed their advocate to defend the suit, no written
statement was filed and nor was the suit contested. Ultimately, the
suit of the respondent was decreed, exparte, on 24.06.2005. An
application for setting aside the exparte decree dated 24.06.2005
was filed, which is pending. In the meanwhile, the
respondent-Corporation started execution proceedings, being Special
Execution Petition No.116 of 2006. An application
for stay of the execution proceedings, filed by the petitioners, is
still pending. The Executing Court issued notice under the
provisions of Order 21, Rule 22 of the Code on 03.11.2006. The
petitioners filed objections as per provisions of Rule 23 on
03.10.2007. Thereafter, the impugned order dated 08.07.2009 came to
be passed, leading to the filing of the present petition.
Mr.Manish
M.Kaushik, learned counsel for the petitioners, has submitted that
the Executing Court has passed the impugned order without
considering or deciding the objections filed by the petitioners
after issuance of notice, as provided under Rule 23 of Order 21. It
is further submitted that the Executing Court, without considering
the said objections, has straightaway passed the impugned order
under the provisions of Rule 30 of Order 21 of the Code, thereby
causing prejudice to the petitioners, who have been deprived of
consideration/ adjudication of the objections filed by them.
On
the other hand, Mr.B.Y.Mankad, learned counsel
for the respondent-Corporation, has submitted that in fact, the
objections of the petitioners have been decided by the impugned
order and as there is no stay against execution proceedings, the
impugned order has been rightly passed by the Executing Court.
On
the Court putting a query to the learned counsel for the
respondent-Corporation as to whether the Court has passed an order
after considering the objections of the petitioners dated
03.10.2007, the learned counsel for the respondent could not render
any satisfactory answer, except that the impugned order amounts to
consideration of the objections. It is prayed that the petition be
dismissed.
I
have heard the learned counsel for the respective parties, perused
the averments made in the petition, contents of the impugned order
and other documents on record.
There
is no dispute regarding the fact that by order dated 03.11.2006, the
Court issued Notice to the
petitioners under the provisions of Order 21, Rule 22 of the Code.
The procedure to be followed by the Court after issuance of Notice
is clearly laid down in Rule 23 of Order 21. The said Rule reads as
under:
23. Procedure
after issue of notice (1) Where the person to whom notice is
issued under rule 22 does not appear or does not show cause to the
satisfaction of the Court why the decree should not be executed, the
Court shall order the decree to be executed.
(2) Where
such person offers any objection of the decree, the
Court shall consider such objection and make such order as it thinks
fit.
(emphasis
supplied)
It
is clear from a reading of sub-rule 2 of Rule 23 that in the event
that a person offers any objection to the execution of the decree,
the Court shall consider such objection and after doing so, make
such order as it thinks fit. The word `shall’
has been used in the said rule, which means that consideration of
the objection filed by a person to the execution of the decree, is
mandatory. After duly considering the objection, the Court may pass
an appropriate order as it
deems fit.
It
is an admitted position that the petitioners have filed an
objection, as stipulated in sub-rule 2 of Rule 23 of the Code which
is dated 03.10.2007. It is not denied by the learned counsel for the
respondent-Corporation that no order has been passed upon the said
objection. This is precisely the case of the petitioners. It is,
therefore, clear that the Court has not considered the objection at
all. The provisions of Rule 23 make the consideration of the
objection necessary and after such consideration, the Court can make
such order, as it thinks fit. The above-quoted provision leaves no
manner of doubt that the order of the Court, as contemplated in
sub-rule 2 of Rule 23 of the Code, is an order to be passed after
considering the objections. By no stretch of imagination can it be
construed to mean that the impugned order passed under the
provisions of Rule 30 of Order 21 of the Code is an order passed
after considering the objections, as contended by the learned
counsel for the respondent-Corporation.
The
procedure to be followed at different stages in execution
proceedings has been meticulously laid down in the Code and, at
every stage, there are inbuilt checks and balances which have been
provided so that no party is prejudiced. Further, the provisions of
Rule 26 of Order 21 relate to stay of execution and provide that the
Court to which a decree has been sent for execution shall, upon
sufficient cause being shown, stay the execution of such decree for
a reasonable time, to enable the judgment-debtor to apply to the
Court by which the decree was passed or to any Court having
appellate jurisdiction in respect of the decree. Admittedly, this
stage has also not been followed, as the application for grant of
stay filed by the petitioners is still pending. After issuance of
notice under Order 21, Rule 22, the Executing Court has straightaway
passed the order under the provisions of Rule 30, whereby a warrant
for attachment and sale of the property of the petitioners has been
issued.
In
the considered view of this Court, by passing
the impugned order, the Court has deprived the petitioners of the
stage of consideration of his objection as well as decision on the
application for stay of the execution proceedings. Undoubtedly,
prejudice will be caused to the petitioners as two stages of
consideration of objection under Order 21 Rule 23 and decision of
the application for stay under Order 21 Rule 26 have been totally
ignored by the Executing Court before passing the impugned order.
The impugned order does not disclose that the objection of the
petitioners has been taken into consideration and, in any case, the
said objection cannot be considered at the stage of passing of the
order under Rule 30, when it has been clearly provided in the Code
that the objection has to be considered and an order made thereupon,
as per provisions of Rule 23(2) of Order 21.
For
the abovestated reasons, as the impugned order has not been
passed in accordance with the provisions of law, it cannot be
sustained. The passing of the impugned order, which is erroneous,
has resulted in injustice to the petitioners. Accordingly, order
dated 08.07.2009 is quashed and set aside. The Executing Court is
directed to consider the objection filed by the petitioners dated
03.10.2007, as also the application for grant of stay, and decide
the same, as expeditiously as possible and without avoidable delay.
Thereafter, the Trial Court may pass a fresh order, in accordance
with law, after hearing the learned counsel for the respective
parties.
It
is made clear that the Court has not considered the merits of the
case and has only decided the petition on the limited grounds as
discussed hereinabove.
The
petition is partly-allowed, as above. Rule is made absolute to the
above extent. There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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