1 Reserved on : 10.06.2025 Pronounced on : 08.07.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CIVIL REVISION PETITION No.343 OF 2025 BETWEEN: M/S. STERLING EXPRESS PRIVATE LIMITED HAVING ITS OFFICE AT II FLOOR, 2180/62, AERENS PLAZA, GURUDWARA ROAD, KAROL BAUGH, CENTRAL DELHI NEW DELHI – 110 005, REPRESENTED BY ITS DIRECTOR MR. RAKESH KHARBANDA. ... PETITIONER (BY SRI VISHWANATH SHENDGE, ADVOCATE) AND: MR NARENDRA KHARBANDA S/O NAND KISHORE KHARBANDA, 1ST FLOOR, BEARING CORPORATION NO. 234, BINNA MANGALA LAYOUT, 7TH CROSS, CMH ROAD, INDIRANAGAR I STAGE, BENGALURU – 560 038. ... RESPONDENT 2 THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CIVIL PROCEDURE CODE 1908, PRAYING TO SET ASIDE THE ORDER DATED 09.04.2025. PASSED IN EX. NO. 25061/2025 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT CITY CIVIL COURT, BENGALURU (CCH 75). THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CAV ORDER The petitioner/decree holder is before this Court calling in question an order dated 09-04-2025 passed in Execution Petition No.25061 of 2025 by the LXXIV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru and has consequently sought issuance of delivery warrant for possession of the property as per the execution petition. 2. Heard Sri Vishwanath Shendge, learned counsel for the petitioner. CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 3 3. Shorn of unnecessary details, facts in brief, are as follows:- The petitioner who is the decree-holder institutes O.S.No.26474 of 2023 against the respondent/judgment debtor for declaration, vacant possession and mesne profits. The concerned Court through its order dated 07.01.2025, allows the application filed by the petitioner under Order XII Rule 6 of the CPC and decrees the suit in favour of the petitioner holding that the respondent/judgment debtor was staying in the suit schedule property without any valid right or title, depriving the petitioner all profits generated from the suit schedule property. 4. The petitioner files an execution petition on 08.04.2025, in Execution No.25061 of 2025 seeking execution of the decree under Order XXI Rule 11 of the CPC seeking issuance of delivery warrant to deliver physical vacant possession of the property and attachment of several movable items available in the premises including sofa, television, laptop, computer and other items. The executing Court, by the impugned order, issues notice to the respondent/judgment debtor returnable by 09-06-2025, on the score that a perusal of the record is clear that until and unless other 4 side is heard, ex-parte delivery warrant cannot be issued. It is this that has driven the petitioner to this Court in the subject petition. 5. The learned counsel appearing for the petitioner submits that as per Order XXI Rule 22 and Order XXI Rule 35 of the CPC while seeking for ex-parte orders of execution, the judgment debtor need not be heard if the execution petition is filed within 2 years from the date of passing of the decree. Order XXI Rule 22 does not contemplate issuance of notice to the judgment debtor. He would seek to place reliance upon certain judgments of the Apex Court and the Delhi High Court. 6. In the light of the aforesaid facts, the issue that is to be considered is, whether the concerned Court had committed any error, in issuing notice to the judgment debtor in the teeth of Order XXI Rule 22 of the CPC? 7. It therefore becomes necessary to notice the impugned order. It reads as follows: 5 “Perused the petition and other documents produced by the Dhr. Perusal of the record clearly goes to show that until and unless other side is heard ex-parte order cannot be granted. Hence, office is directed to issue notice to JDR. Returnable by 9-06-2025.” (Emphasis added) The only order that is passed by the concerned court is, without hearing the other side no order can be passed. The learned counsel projects Order XXI Rule 21 and Order XXI Rule 35 of the CPC to contend that it does not contemplate issuance of notice, if the execution petition is filed within 2 years. The said provisions read as follows: “ORDER XXI EXECUTION OF DECREES AND ORDERS Payment under decree …. …. …. 22. Notice to show cause against execution in certain cases.— (1) Where an application for execution is made— (a) more than two years after the date of decree, or (b) against the legal representative of a party to the decree, or (c) where the party to the decree has been declared insolvent against the assignee or receiver in insolvency, or (d) for the execution of a decree filed under the provisions of Section 44-A of this Code, the Court executing the decree shall issue a notice to the person against whom execution is applied 6 for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Where from the particulars mentioned in the application in compliance with Rule 11(2)(ff) of this order or otherwise the Court has information that the decree-holder has transferred any part of his interest in the decree, the Court shall issue notice of the application to all parties to such transfer other than the petitioner, where he is a party to the transfer. (3) Nothing in the foregoing sub-rules shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice hereby prescribed, if for reasons to be recorded in writing the Court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice: Provided that no order for the execution of a decree shall be invalid owing to the omission of the Court to issue a notice as required by sub-rule (1) or to record its reasons where notice is dispensed with under sub-rule (3) unless the judgment-debtor has sustained substantial injury as a result of such omission. … … … 35. Decree for immovable property.—(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. 7 (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.” (Emphasis supplied) The proviso to sub-rule 1 of Order XXI Rule 22 of the CPC clearly indicates that if the application seeking execution is made within 2 years from the date of last order against the party against whom execution is applied for, the court shall not issue any notice to the judgment debtor. 7. The issue need not detain this Court for long or delve deep into the matter. The High Court of Bombay in the case of ULHAS PANDHARINATH CHODANKAR V. SENIOR CIVIL JUDGE1, holds as follows: 1 2016 SCC OnLine Bom 601 8 “6. In the instant case, the decree that is being sought to be executed through the executing Court is passed on 16.01.2014. The execution application has been filed in December, 2015, that is, before expiry of period of two years from the date of decree. Under Order 21 Rule 22 C.P.C., when an application for execution of decree is made after expiry of two years from the date of decree, then only the executing Court is required to issue a notice to the judgment debtor for requiring him to show cause as to why the decree should not be executed against him, and otherwise not. In other words, when the execution is sought before expiry of period of two years from the date of the decree, a reverse situation would be true thereby meaning that no mandatory duty would be cast upon the Court to issue a show cause notice to the judgment debtor. It would also mean that the executing Court would have the power to execute the decree forthwith without issuing any notice to the judgment debtor. There is no provision in Order 21 Rule 22 conferring any discretionary power upon the executing Court to issue a show cause notice to the judgment debtor even in a case where the execution is sought for within two years from the date of the decree. If no such power has been conferred by any express provision of law, I do not understand as to how the learned Senior Civil Judge could read such a power as residing in him in the scheme of the provisions of Order 21 C.P.C. Learned Senior Civil Judge has also accepted the fact that execution has been sought within two years from the date of the decree. Even in the case of Inocencio Fernandes (supra), the need for executing the decree forthwith, in a case where the execution application has been made within the stipulated time, it was one year at the time when the judgment was rendered, has been underlined. However it appears that learned Senior Civil Judge has not considered the ratio of this case in a proper perspective. Therefore, the order impugned herein would have to be termed as an order passed in breach of express provisions of law and cannot be sustained. 9 7. It may be mentioned here while exercising the discretion to issue show cause notice to the judgment debtor in this case when it was not really available under the express provisions of law, the learned Senior Civil Judge has also not invoked his inherent power under Section 151 C.P.C., and it can be seen from the impugned order. The discretionary power seen to be existing in him has been drawn, if I may say so, from some assumptions.” (Emphasis Supplied) The Madurai Bench of Madras High Court in the case of RATHINASABAPATHI (DIED) & ORS. V. PATTAMMAL (DIED) & ORS.,2 holds as follows: “4. Order 21 Rule 22 C.P.C. makes it clear that if the Execution Petition is filed within two years from the date of decree, there is no necessity for a notice to show cause against execution to the Judgment Debtor. 5. This Court, in Hazrath Imam Hussain Wakf, rep. by its Muthavalli Mr.Aga Zulfikar Ali @ Afzal Aga, Chennai vs. Nayeema Adib reported in (2006) 4 MLJ 190, held as follows: “2. Order 21, Rule 35 C.P.C. read along with Order 21, Rule 22 C.P.C. makes it clear that in the event of application for execution being filed within two years from the date of the decree, the execution Court is fully empowered to secure possession to be delivered to the decree-holder from the person in possession who is bound by the decree and who refuses to vacate the property. Under sub-rule (3) of Rule 35 of Order 21 C.P.C., if such person who is bound by the decree does not afford free access, the Court can through its officers after giving reasonable warning and facility to any woman not appearing in public according to customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for 2 CRP (PD) (MD) No. 2545 of 2022, Dt. 03-01-2023 10 putting the decree-holder in possession. Thus, a conjoint reading of Order 21 and Rule 22 and Rule 35 C.P.C. makes it clear that in the event of the 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 order of delivery without any notice being ordered in the judgment-debtor concerned. 3. The said legal position has also been affirmed by this Court by His Lordship M.SRINIVASAN, as he then was, in the judgment reported, in Nachayee Ammal and Others vs. Pichaimuthu (1992) 2 MLJ 498 wherein the learned Judge has stated the legal position as under in paragraph 4: “ ...... If the execution petition is filed within two years after the date of the decree, there is no necessity for the executing Court to issue notice to the judgment-debtor .........” “6. Consequently, the order dated 7.1.1991 recording delivery is directly in accordance with law as the order granting execution without notice to the judgment-debtor was in accordance with the provisions of Order 21, Rule 22 of the Civil Procedure Code. Hence, that order cannot be set aside on the ground that the Circular issued by this Court had not been followed or complied with.” (Emphasis Supplied) On a coalesce of the judgments rendered by the High Courts of Bombay and Madras, what would unmistakably emerge is that under Order XXI Rule 22 of CPC, if an application for execution is filed before the Executing Court by the decree holder within 2 years from the date of the decree, there is no necessity for issuance of notice to the judgment debtor. 11 8. In the case at hand, the decree was passed on 07-01-2025. The Petitioner/decree holder files the Execution Petition on 08-05-2025, i.e., within two years from the date of the decree. Despite the Petitioner filing the Execution Petition within 2 years from the date of the decree, the concerned court passes the impugned order dated 09-04-2025 issuing notice to the judgment debtor. This is in violation of the proviso to sub-rule (1) of Order XXI Rule 22 of the CPC. 9. In the light of the reasons rendered above and the afore- quoted judgments, the impugned order dated 09-04-2025 is to be set aside. 10. For the aforesaid reasons, the following: ORDER (i) Civil Revision Petition is allowed. (ii) Order impugned dated 09-04-2025 passed in Execution Petition No.25061 of 2025 by the LXXIV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru stands quashed. 12 (iii) The concerned Court shall now proceed to regulate its procedure in terms of the observations made in the course of the order. Sd/- (M.NAGAPRASANNA) JUDGE BKP/CT:MJ