JASEENTHA JOSEPH Vs. LOUIS NEEKLAUSE CHEPPALLIL ST JOSEPH HOUSE PATATHANAM WARD

JUDGEMENT

(1.) Revision petitioner is the 13th judgment debtor in OS. No. 140 of 1978 on the file of the Principal Sub Court, Kollam. The decree holders filed E.P. No. 376 of 1994 on 16.2.1994 for delivery of the decree schedule item No. 1. The suit was a partition suit. The schedule property item No. 1 belonged to the first decree holder. The shares allotted to the plaintiffs 2 and 3 were delivered on 31.7.1990. The first judgment debtor died. His legal representatives are additional judgment debtors 11 to 17. When the execution petition was filed, they filed objections stating that notice under O.21 R.22 was not issued to the additional judgment debtors 11 to 17 who are the legal representatives of the first judgment debtors. It was also contended that in the execution petition other judgment debtor were not parties. Earlier, E.P. No. 150 of 1989 was filed and the same was dismissed on 5.9.1991. Execution petition number was not mentioned in the application. It was further contended that the property now sought to be delivered is in possession of one Titus who claims to be the tenant of plaint schedule item No. 1. He is also not made a party. The above objections raised by the additional judgment debtors 11 to 17 were overruled and delivery of item No. 1 of plaint schedule property was ordered. This order is challenged in this revision petition.

(2.) According to the revision petitioner, notice under O.21 R.22 is mandatory. Since no notice" was issued under O.21 R.22 the execution petition will not lie. On that ground alone; the execution petition is liable to be dismissed. The other grounds which were contested by filing objections were also pressed. For understanding the nature of the contention, O.21 R.22 is quoted below:

(3.) In Rajagopala Aiyar v. Ramanujachariyar ( AIR 1924 Mad. 431 ) a Full Bench of the Madras High Court held that where on an application for execution falling under O.21 R.22 to which Clause.2 of that rule is not applied, a sale in execution is held without issuing the notice provided for in Clause.1, the sale is absolutely void. Various decisions including the Privy Council decision in Raghunath Das v. Sundar Das Khetri ( AIR 1914 PC 129 ) were considered in the Full Bench decision.