Decree-holder approaching the execution Court within two years after the date of the decree is entitled for recovery of possession by order of delivery without any notice being ordered to the judgment-debtor.

Citation

CDJ 2007 MHC 4342

K.Sourirajan vs P.R.Adikesavan

Head Note

Constitutional of India – Article 226, 227 - Code Of Civil Procedure, 1908 – Section 115 - Order 21 rule 22 And Rule 35 - the petitioner has moved the Executing Court by filing E.P.No.420 of 2007 for that even before numbering the said E.P., the learned Rent Controller posted the matter for maintainability -this, it is clear that the respondent was fully aware of the execution proceedings pending against him from the date on which, the E.P. was numbered. The petitioner secured ex parte order of eviction on 27.3.2003 against the respondent, by which, the respondent was granted two months time to vacate and deliver the vacant possession of the premises - after expiry of the period of two month, in spite of vacating the premises, the respondent started filing the petitions for setting aside the ex parte eviction order and thereafter one after another and dragged on the proceedings till 28.8.2007 on which date, the petitioner filed Execution Petition - it is clear that the respondent is fully aware of the Execution Proceedings right from the date of its filing. In such circumstances, as rightly contended by the learned counsel, without ordering notice, the Rent Controller can proceed with the E.P. and can order for delivery of possession against him - Order 21 rule 22 And Rule 35 CPC would envisage that in the event of decree-holder approaching the concerned execution Court within two years after the date of the decree is entitled for recovery of possession by order of delivery without any notice being ordered to the judgment-debtor. No doubt, in the present case, after the decree, the petitioner has not approached the execution Court within two years, but it should not be ignored that after passing the eviction order against him in the year 2003, he has continuously dragged on the proceedings by filing number of petitions one after another and successfully prolonged the matter till the year 2007 - the view that the petitioner is entitled for recovery of possession by order of delivery without any notice being ordered to the respondent - Civil Revision Petition allowed.