Case Note & Summary
The dispute arose from a money decree in O.S. No. 271 of 1999 filed by the respondent-decree holder against the appellant-judgment debtor. The suit was decreed on 22.02.2002. The respondent filed Execution Petition No. 158/2004, which was dismissed for default on 05.10.2004. Another Execution Petition No. 267/2005 was filed. Summons were sent to the appellant's address but returned with the remark that the appellant was not residing at that old address. Despite this, the Execution Court proceeded ex-parte on 26.09.2005, and the property was sold in court auction on 03.02.2006, with the respondent himself purchasing it for Rs.6,00,001/-. The sale was confirmed. The appellant, claiming to have learned of the ex-parte order only on 04.08.2006, filed an application under Order 21 Rule 106 CPC to set aside the ex-parte order. The Execution Court allowed the application on 04.04.2008, holding that summons were not properly served and that both parties should be heard. The respondent filed a revision before the High Court, which allowed it on 20.09.2017, reasoning that the appellant had knowledge through newspaper publication and notice pasted on the property. The Supreme Court, hearing the appeal, noted that the summons were not duly served as they were returned with the remark that the appellant was not residing at the old address. The Court held that the Execution Court should have issued fresh notice instead of proceeding with the auction. The publication in Malayalam was not shown to be understood by the appellant. Therefore, the High Court's order was set aside, and Execution Petition No. 267/2005 was restored. However, considering the respondent's willingness to accept Rs.12,50,000/- in full satisfaction, the Court directed that the respondent be entitled to withdraw the already deposited Rs.10,00,000/- and the appellant pay an additional Rs.2,50,000/- within eight weeks. The court auction sale was set aside, and the appellant was permitted to apply for cancellation of the sale entries.
Headnote
A) Civil Procedure - Execution Proceedings - Setting Aside Ex-Parte Order - Order 21 Rule 106 CPC - Proper Service of Summons - The Execution Court set aside the ex-parte order on the ground that summons were returned with remark that appellant was not residing at the old address, and there was no proper service. The High Court reversed this, holding that the appellant had knowledge through newspaper publication and notice pasted on property. The Supreme Court held that when summons are not duly served, the Execution Court should issue fresh notice rather than proceeding with auction. The High Court's order was set aside and execution petition restored. (Paras 3-7) B) Civil Procedure - Execution Proceedings - Court Auction Sale - Setting Aside Sale - Payment of Decree Amount - The Supreme Court, considering the respondent-decree holder's willingness to accept a sum of Rs.12,50,000/- in full satisfaction, directed the appellant to pay Rs.2,50,000/- in addition to the already deposited Rs.10,00,000/-, and set aside the court auction sale held on 03.02.2006. (Paras 8-9)
Issue of Consideration
Whether the High Court was correct in setting aside the order of the Execution Court which had set aside the ex-parte order and restored the execution petition, given that the summons were not properly served on the judgment-debtor.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court order, and restored Execution Petition No. 267/2005. The Court directed that the respondent-decree holder is entitled to receive Rs.12,50,000/- in full satisfaction of the decree. The appellant had already deposited Rs.10,00,000/-, which the respondent may withdraw. The appellant shall pay an additional Rs.2,50,000/- within eight weeks. The court auction sale held on 03.02.2006 was set aside. The appellant is at liberty to apply for cancellation of sale entries.
Law Points
- Order 21 Rule 106 CPC
- Proper service of summons
- Setting aside ex-parte order
- Restoration of execution petition
- Court auction sale set aside upon payment of decree amount
