Jayarama Vs. Ajjanna - Court Judgment

Excerpt:
(a) civil procedure code, 1908 (central act no. 5 of 1908) - section 148a -- except in case of order 21 rules 22, 37 or any specific provision requiring issuance of notice, no right to judgment-debtor to file caveat or to be heard before issue of process.;merely because the execution case might come within the ambit of 'proceeding' as defined by section 148a, it does not give a right to the party to file a caveat in all the execution cases. in order to satisfy the ingredients of section 148a, it must be shown that he has a right to appear before the court on the hearing of such application -- unless the case falls under rule 22 of order 21 of the code of civil procedure or under order 21 rule 37 of the code of civil procedure, or under some provisions requiring the issuance of notice, the judgment-debtor is not entitled to a notice or is not entitled to be heard at all. the wisdom lying behind order 21 rule 22 or rule 37 etc., would be a material circumstance to be taken into consideration while interpreting section 148a of the code of civil procedure.... unless a specific provision requires that the judgment-debtor should be heard in the course of the execution, he would not have any right to file the caveat and even if he has filed the caveat in anticipation of filing of the execution, the court is not bound to hear him before issuing the process under order 21 rule 35 of the code of civil procedure or other similar provisions.;(b) karnataka rent control act, 1961 (karnataka act no. 22 of 1961) - section 21 -- tenant admitting ground for eviction made out and comparative hardship, court can proceed to pass order, nothing to be proved and no evidence required to be recorded .... in case of compromise, order or order sheet indicating application of mind, eviction order not null and void.;it is no doubt true that section 21 of the karnataka rent control act requires that the grounds of eviction mentioned in section 21 of the karnataka rent control act must be established to the satisfaction of the court below. it does not mean that an eviction case filed under section 21 should be disposed of only after recording the evidence. if the tenant admits the ground made out by the landlord in the eviction case and if he also admits the comparative hardship pleaded, then the court can proceed to pass an order. when the tenant himself admits the ground made out by the landlord, nothing remains for the landlord to prove. even in the case of a compromise, entered into between the landlord and the tenant, what is expected of the court under the karnataka rent control act is that it should apply its mind to the averments made by the landlord and to the terms of the compromise and if there is something in the order passed or in the order sheet to indicate that the trial court has applied its mind to the grounds urged, then the eviction ordered by virtue of the compromise does not become null and void. - - he failed to show the cause. on 2-12-1983, the landlord -decree-holder as well as the tenant judgment-debtor filed a compromise petition under order 23 rule 3 of the code of civil procedure read with section 151 of the code of civil procedure in the said c. 6. the order passed under section 29(4) of the karnataka rent control act by the munsiff on 17-8-1981 reads, as--this eviction order has been passed by the munsiff after giving an opportunity to the tenant to pay the arrears of rent and as he failed to show cause as contemplated by section 29 of the karnataka rent control act. the reading of the order sheet would clearly go to show that the court had in mind the order passed by the trial court under section 29(4) of the karnataka rent control act. therefore, the said order passed by the district judge clearly indicates that be applied his mind to the compromise petition and was satisfied that the tenant had fallen in arrears of rent and had failed to show cause, as contemplated by section 29 of the karnataka rent control act. he also considered the question as to what would happen if the tenant failed to pay the rent as prescribed by the compromise. thus, in my opinion, the district judge has given very anxious consideration to the terms of the compromise and was satisfied that the tenant had fallen in arrears of rent, as found by the trial court, and was satisfied that the tenant had failed to show cause as contemplated by section 29. therefore, the eviction ordered under section 29 was upheld by the district judge. it is nothing but a view expressed by the munsiff, without realising that the order was passed by the district judge after giving anxious consideration to the terms of the compromise and after satisfying himself that the requirements of section 29 bad been proved against the tenant. 40 of 1981 is one passed by the district judge according to law and after applying his mind anxiously to the details of the terms of the compromise and after satisfying himself that the eviction order passed under section 29 was well justified by the material on record. veeranna, 1981 (2) klj 323 that if a party has a right to file the caveat and if an order is passed without hearing him, then such an order passed becomes bad at law and thus is unenforceable. the jaw has wisely taken into conversation the well known maxim that the pains of the decree holder start only after the decree and therefore as per the said provisions it has dispensed with the: 250/- in the court below as well as in this case.orderkulkarni, j.1. this is a revision by the decree-holder against the order dated 9-9-1985 passed by the munsiff, chitradurga, in execution case no. 79 of 1985 and miscellaneous case no. 67 of 1981, ordering redelivery of the property to the judgment-debtor-respondent.2. the decree-holder filed h.r.c. case 12 of 1977 against the judgment-debtor under section 21 (1) (h) of the karnataka rent control act in the court of the munsiff, chitradurga. in the said eviction case, the decree-holder-landlord filed an application under section 29 of the karnataka rent control act alleging that the tenant had fallen in arrears of rent. notwithstanding the order passed by the court under section 29 of the rent control act, the tenant did not deposit the rental arrears. the show cause notice contemplated by section 29 was issued to the judgment-debtor. he failed to show the cause. hence, the order under section 29(4) of the karnataka rent control act, directing the judgment debtor tenant to put the decree-holder landlord in possession of the property, was passed. being dissatisfied by that order, the tenant approached the district judge, chitradurga, with c.r.p. 40 of 1981 under section 50 of the karnataka rent control act. on 2-12-1983, the landlord -decree-holder as well as the tenant judgment-debtor filed a compromise petition under order 23 rule 3 of the code of civil procedure read with section 151 of the code of civil procedure in the said c.r.p. 40 of 1981. the district judge recorded that compromise and the eviction order passed by the trial court was confirmed subject to giving time to the tenant to vacate till 30th june, 1985.3. in the meanwhile, the judgment-debtor claims to have filed a caveat under section 148a of the code of civil procedure, apprehending that the landlord might levy an execution petition against him and obtain delivery.4. the landlord decree-holder levied execution seeking relief under order 21 rule 35 of the code of civil procedure and sought for delivery of actual possession of the property to him. the executing court issued the warrant for delivery of possession and the decree-holder landlord was actually put in possession of the property by the bailiff as per the delivery warrant.5. thereafter, the judgment-debtor filed mis. 67 of 1985 purporting to be one under section 144 of the code of civil procedure read with section 151 of the code of civil procedure seeking restoration of the property on the ground that the order of eviction executed by the executing court, was one passed by the district judge in revision without jurisdiction and that the order of issue of delivery warrant and the actual delivery were vitiated as they were opposed to section 148a of the code of civil procedure.6. the order passed under section 29(4) of the karnataka rent control act by the munsiff on 17-8-1981 reads, as--this eviction order has been passed by the munsiff after giving an opportunity to the tenant to pay the arrears of rent and as he failed to show cause as contemplated by section 29 of the karnataka rent control act. it is not the case of the judgment-debtor that the order passed by the munsiff is illegal or without jurisdiction. the lower court has extracted the compromise petition filed by the decree-holder land-lord and the judgment-debtor tenant in c.r.p. 40 of 1981. it reads as --'joint application filed under order 23 rule 3 r/w section 151 cpc :1. it is agreed between the petitioner - tenant and the respondent - landlord that the petitioner-tenant shall vacate the petition schedule premises in hrc 12/77 on the file of the munsiff, chitradurga on or before 30th june, 1985.2. the petitioner-tenant has hereby agreed to deposit the future rent on or before the 15th of every succeeding month and in case he commits any default for any one month) the respondent-landlord is entitled to evict the tenant from the petition schedule premises in hrc. 12/77 on the file of the munsiff, chitradurga.3. the petitioner-tenant shall deposit the rent regularly every month on or before 15th of succeeding month in hrc. 12/77 on the file of the munsiff, chitradurga.'the lower court has also extracted the relevant order sheet dated 2-12-1983 in c.r.p. 40 of 1981. it reads as--'2-12-1983: petitioner by sri car. respondent by sri csk. for further hearing.joint application under order 23 rule 3 cpc r/w. section 151 cpc filed by both sides in which the revision petitioner-tenant has agreed to vacate by 30-6-1985 and to may agreed further rent on or before 15th of every month.parties are present. they admit the contents of the petition. they admit to have require the same. the contents are explained.in view of the compromise petition, the revision petition is allowed in the terms of the compromise application. h.r.c. 12/77 is finally disposed of in terms of compromise. parties to bear their own costs.'7. it is no doubt true that section 21 of the karnataka rent control act requires that the grounds of eviction mentioned in section 21 of the karnataka rent control act must be established to the satisfaction of the court below. it does not mean that an eviction case filed under section 21 should be disposed of only after recording the evidence. if the tenant admits the ground made out by the landlord in the eviction case and if he also admits the comparative hardship pleaded then the court can proceed to pass an order. when the tenant himself admits the ground made out by the landlord, nothing remains for the landlord to prove. even in the case of a compromise entered into between the landlord and the tenant, what is expected of the court under the karnataka rent control act is that it should apply its mind to the averments made by the landlord and to the terms of the compromise and if there is something in the order passed or in the order sheet to indicate that the trial court has applied its mind to the grounds urged, then the eviction ordered by virtue of the compromises does not become null and void.8. the supreme court in nagindas ramdas v. dalpatram iccharam alias brijram and ors., : [1974]2scr544 has clearly stated that if the court records the compromise and if there is sufficient indication to show that the court has applied its mind to the requirements to be made out under section 21 of the karnataka rent control act, then the order of eviction, evidenced by the compromise, cannot be said to be bad at law or to be one passed without jurisdiction. similar is the view taken by this court in r.l. narayan v. k s. rangaiah shetty deceased by lrs, and ors., ilr (karnataka) 1975, 1923.9. in this case, the compromise entered into between the parties has been extracted above. the order passed by the district judge in c.r.p. 40 of 1981, on the basis of the compromise, is also reproduced above. the reading of the order sheet would clearly go to show that the court had in mind the order passed by the trial court under section 29(4) of the karnataka rent control act. it also indicates that the question of the tenant having fallen in arrears of rent, arrived at by the trial court, was not disputed by the tenant in the compromise. therefore, the said order passed by the district judge clearly indicates that be applied his mind to the compromise petition and was satisfied that the tenant had fallen in arrears of rent and had failed to show cause, as contemplated by section 29 of the karnataka rent control act. not only that, the district judge also considered the fact that the tenant was required to pay the future rent by a particular date. he also considered the question as to what would happen if the tenant failed to pay the rent as prescribed by the compromise. he also took into consideration the fact that nearly two years time was granted to the tenant to vacate. thus, in my opinion, the district judge has given very anxious consideration to the terms of the compromise and was satisfied that the tenant had fallen in arrears of rent, as found by the trial court, and was satisfied that the tenant had failed to show cause as contemplated by section 29. therefore, the eviction ordered under section 29 was upheld by the district judge. it is not as if the district judge blindly accepted the compromise without applying his mind to the terms of the compromise. therefore, the ground made out by the executing court that the eviction order confirmed in c.r.p. no. 40/81 by the district judge was passed on the compromise simpliciter and without the district judge applying his mind to the terms of the compromise, is unsupportable and wrong. it is nothing but a view expressed by the munsiff, without realising that the order was passed by the district judge after giving anxious consideration to the terms of the compromise and after satisfying himself that the requirements of section 29 bad been proved against the tenant. therefore, it was too much for the executing court to hold that the order passed by the district judge in c.r.p. no. 40 of 1981 was a nullity and was one without jurisdiction.10. as already stated above, the order of eviction maintained in c.r.p.no. 40 of 1981 is one passed by the district judge according to law and after applying his mind anxiously to the details of the terms of the compromise and after satisfying himself that the eviction order passed under section 29 was well justified by the material on record. therefore, this ground relied on by the trial court in ordering restoration, is unsustainable.11. it is no doubt true that the judgment-debtor had filed a caveat under section 148a of the code of civil procedure on 1-7 1981 alleging that he had valid objections regarding the executability of the said order passed by the revisional court, and requesting the court to hear him before passing any order. the said caveat, as can be seen from the order sheet of the court below, was registered as mis. 50 of 1985. the execution case was filed after the filing of the caveat. the learned counsel sri kantharaj submitted that in view of the fact that the caveat had been filed by the judgment-debtor anticipating that execution case, seeking delivery of possession of the property, would be filed against him, and in view of the fact that the executing court did not hear the judgment-debtor before the issue of delivery warrant and before delivering possession to the landlord, the order of issue of warrant of delivery of possession and the actual delivery of possession were thus illegal and opposed to law.12. section 148a of the code of civil procedure reads, as --'right to lodge a caveat.--(1) where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect thereof.(2) where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgment due, on the person by whom the application has been, or is expected to be, made, under subsection (1).(3) where, after a caveat has been lodged under subsection (1), any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator.(4) where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.(5) where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.'13. this court has laid down in siddalingappa g.c. v. g. c. veeranna, 1981 (2) klj 323 that if a party has a right to file the caveat and if an order is passed without hearing him, then such an order passed becomes bad at law and thus is unenforceable. but the question is whether a party has got a right to file a caveat under section 148a of the code of civil procedure in the execution petition.14. section 148a requires the filing of the caveat in a suit or proceeding. execution is admittedly not a suit. whether the words 'proceeding instituted or about to be instituted' would cover the execution case also. delivery of possession in execution of the order for eviction is regulated by order 21 rule 35 of the code of civil procedure. the meaning of the word 'proceeding' cannot be so strictly construed as to shut out a right of a person under section 148a. in all probability, the words 'proceeding instituted or about to be instituted', would include the execution case also. merely because the execution case might come within the ambit of 'proceeding' as defined by section 148a, it does cot give a right to the party to file a caveat in all the execution cases. in order to satisfy the ingredients of section 148a, it must be shown that he has a right to appear before the court on the hearing of such application. if the judgment-debtor is able to show that he has got a right to appear before the court, then the lodging of a caveat would have some meaning.15. order 21 rule 22 of the code of civil procedure reads as--'(1) where an application for execution is made --(a) more than two years after the date of the decree, or(b) against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of section 44a, or(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the court executing the decree shall issue a notice to the person against whom execution is applied 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, made on any previous application 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) nothing in the foregoing sub-rule shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the end of justice.'therefore, unless the case falls under rule 22 of order 21 of the code of civil procedure or under order 21 rule 37 of the code of civil procedure, or under some provisions requiring the issuance of notice, the judgment-debtor is not entitled to a notice or is not entitled to be heard at all. the jaw has wisely taken into conversation the well known maxim that the pains of the decree holder start only after the decree and therefore as per the said provisions it has dispensed with the: notice in some cases. if the judgment debtor were to be again given a notice in all execution oases, the fruits of the decree cannot be realised by the decree-holder. the wisdom lying behind order 21 rule 22 or rule 37 etc., would be a material circumstance to be taken info consideration while interpreting section 148a of the code of civil procedure.16. the execution case in question was levied within two years from the expiry of the time given to vacate by the district judge in c.r.p. no. 40 of 1981. the judgment debtor is not a legal representative of a party to the eviction order. he does not come within the ambit of an assignee or a receiver in insolvency. therefore, i do not think that the judgment-debtor had got any right to be heard before issuance of the delivery warrant or before the decree-holder was put in possession of the property in the execution case. further, order 21 rule 22 (2) of the code of civil procedure gives a discretion to the court to dispense with the notice contemplated by order 21 rule 22 (1)(a),(b) and (c), if it finds that the issue of such notice is likely to result in unreasonable delay and would defeat the ends of justice. the wisdom behind it is that the court should not commit unreasonable delay in giving relief to the party, who has fought the litigation for years and years to come. therefore, in view of order 21 rule 22, it cannot be said that the judgment-debtor had got any right to be heard in the execution case itself. the view i have taken is strengthened by the decision in nav digvijaya co. operative housing society limited v. sadhana builders and ors., : air1984bom114 .17. thus, the above discussion would go to show that unless a specific provision requires that the judgment-debtor should be heard in the course of the execution, he would not have any right to file the caveat and even if he has filed the caveat in anticipation of filing of the execution, the court is not bound to hear him before issuing the process under order 21 rule 35 of the code of civil procedure or other similar provisions. therefore, the court below, in my opinion, slipped info a serious error in holding that the judgment debtor was entitled to he heard before the issue of delivery warrant or before the delivery of possession, as he had filed a caveat. the filing of caveat, in such cases, is absolutely redundant and nothing but an attempt to protract the proceedings to the extent possible. therefore, there is no contravention of section 148a of the code of civil procedure in this case.18. therefore, in the result, the order passed by the court below, allowing the miscellaneous case and ordering restitution of possession, is set aside. the revision is allowed. in this case, if i may say so, the judgment-debtor has misused the sympathy extended to him by giving him two years time to vacate. the judgment-debtor should pay the costs of the decree-holder not only in the court below, but also in this revision and should bear his own. the lawyer's fee is fixed at rs. 250/- in the court below as well as in this case.

Judgment:
ORDER

Kulkarni, J.

1. This is a revision by the decree-holder against the order dated 9-9-1985 passed by the Munsiff, Chitradurga, in Execution Case No. 79 of 1985 and Miscellaneous Case No. 67 of 1981, ordering redelivery of the property to the Judgment-debtor-respondent.

2. The decree-holder filed H.R.C. Case 12 of 1977 against the Judgment-debtor under Section 21 (1) (h) of the Karnataka Rent Control Act in the Court of the Munsiff, Chitradurga. In the said eviction case, the decree-holder-landlord filed an application under Section 29 of the Karnataka Rent Control Act alleging that the tenant had fallen in arrears of rent. Notwithstanding the order passed by the Court under Section 29 of the Rent Control Act, the tenant did not deposit the rental arrears. The show cause notice contemplated by Section 29 was issued to the Judgment-debtor. He failed to show the cause. Hence, the order under Section 29(4) of the Karnataka Rent Control Act, directing the judgment debtor tenant to put the decree-holder landlord in possession of the property, was passed. Being dissatisfied by that order, the tenant approached the District Judge, Chitradurga, with C.R.P. 40 of 1981 under Section 50 of the Karnataka Rent Control Act. On 2-12-1983, the landlord -decree-holder as well as the tenant judgment-debtor filed a compromise petition under Order 23 Rule 3 of the Code of Civil Procedure read with Section 151 of the Code of Civil procedure in the said C.R.P. 40 of 1981. The District Judge recorded that compromise and the eviction order passed by the Trial Court was confirmed subject to giving time to the tenant to vacate till 30th June, 1985.

3. In the meanwhile, the judgment-debtor claims to have filed a caveat under Section 148A of the Code of Civil Procedure, apprehending that the landlord might levy an execution petition against him and obtain delivery.

4. The landlord decree-holder levied execution seeking relief under Order 21 Rule 35 of the Code of Civil Procedure and sought for delivery of actual possession of the property to him. The executing Court issued the warrant for delivery of possession and the decree-holder landlord was actually put in possession of the property by the bailiff as per the delivery warrant.

5. Thereafter, the judgment-debtor filed Mis. 67 of 1985 purporting to be one under Section 144 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure seeking restoration of the property on the ground that the order of eviction executed by the executing Court, was one passed by the District Judge in revision without jurisdiction and that the order of issue of delivery warrant and the actual delivery were vitiated as they were opposed to Section 148A of the Code of Civil Procedure.

6. The order passed under Section 29(4) of the Karnataka Rent Control Act by the Munsiff on 17-8-1981 reads, as--

This eviction order has been passed by the Munsiff after giving an opportunity to the tenant to pay the arrears of rent and as he failed to show cause as contemplated by Section 29 of the Karnataka Rent Control Act. It is not the case of the judgment-debtor that the order passed by the Munsiff is illegal or without jurisdiction. The lower Court has extracted the compromise petition filed by the decree-holder land-lord and the judgment-debtor tenant in C.R.P. 40 of 1981. It reads as --

'Joint application filed under Order 23 Rule 3 R/W Section 151 CPC :

1. It is agreed between the petitioner - tenant and the respondent - landlord that the petitioner-tenant shall vacate the Petition schedule premises in HRC 12/77 on the file of the Munsiff, Chitradurga on or before 30th June, 1985.

2. The petitioner-tenant has hereby agreed to deposit the future rent on or before the 15th of every succeeding month and in case he commits any default for any one month) the Respondent-landlord is entitled to evict the tenant from the Petition schedule premises in HRC. 12/77 on the file of the Munsiff, Chitradurga.

3. The petitioner-tenant shall deposit the rent regularly every month on or before 15th of succeeding month in HRC. 12/77 on the file of the Munsiff, Chitradurga.'

The lower Court has also extracted the relevant order sheet dated 2-12-1983 in C.R.P. 40 of 1981. It reads as--

'2-12-1983: Petitioner by Sri CAR. Respondent by Sri CSK. for further hearing.

Joint application under Order 23 Rule 3 CPC r/w. Section 151 CPC filed by both sides in which the Revision petitioner-tenant has agreed to vacate by 30-6-1985 and to may agreed further rent on or before 15th of every month.

Parties are present. They admit the contents of the petition. They admit to have require the same. The contents are explained.

In view of the compromise petition, the revision petition is allowed in the terms of the compromise application. H.R.C. 12/77 is finally disposed of In terms of compromise. Parties to bear their own costs.'

7. It is no doubt true that Section 21 of the Karnataka Rent Control Act requires that the grounds of eviction mentioned in Section 21 of the Karnataka Rent Control Act must be established to the satisfaction of the Court below. It does not mean that an eviction case filed under Section 21 should be disposed of only after recording the evidence. If the tenant admits the ground made out by the landlord in the eviction case and if he also admits the comparative hardship pleaded then the Court can proceed to pass an order. When the tenant himself admits the ground made out by the landlord, nothing remains for the landlord to prove. Even in the case of a compromise entered into between the landlord and the tenant, what is expected of the Court under the Karnataka Rent Control Act is that it should apply its mind to the averments made by the landlord and to the terms of the compromise and if there is something in the order passed or in the order sheet to indicate that the Trial Court has applied its mind to the grounds urged, then the eviction ordered by virtue of the compromises does not become null and void.

8. The Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam Alias Brijram and Ors., : [1974]2SCR544 has clearly stated that if the Court records the compromise and if there is sufficient indication to show that the Court has applied its mind to the requirements to be made out under Section 21 of the Karnataka Rent Control Act, then the order of eviction, evidenced by the compromise, cannot be said to be bad at law or to be one passed without jurisdiction. Similar is the view taken by this Court in R.L. Narayan v. K S. Rangaiah Shetty Deceased by Lrs, and Ors., ILR (Karnataka) 1975, 1923.

9. In this case, the compromise entered into between the parties has been extracted above. The order passed by the District Judge in C.R.P. 40 of 1981, on the basis of the compromise, is also reproduced above. The reading of the order sheet would clearly go to show that the Court had in mind the order passed by the Trial Court under Section 29(4) of the Karnataka Rent Control Act. It also indicates that the question of the tenant having fallen in arrears of rent, arrived at by the Trial Court, was not disputed by the tenant in the compromise. Therefore, the said order passed by the District Judge clearly indicates that be applied his mind to the compromise petition and was satisfied that the tenant had fallen in arrears of rent and had failed to show cause, as contemplated by Section 29 of the Karnataka Rent Control Act. Not only that, the District Judge also considered the fact that the tenant was required to pay the future rent by a particular date. He also considered the question as to what would happen if the tenant failed to pay the rent as prescribed by the compromise. He also took into consideration the fact that nearly two years time was granted to the tenant to vacate. Thus, in my opinion, the District Judge has given very anxious consideration to the terms of the compromise and was satisfied that the tenant had fallen in arrears of rent, as found by the Trial Court, and was satisfied that the tenant had failed to show cause as contemplated by Section 29. Therefore, the eviction ordered under Section 29 was upheld by the District Judge. It is not as if the District Judge blindly accepted the compromise without applying his mind to the terms of the compromise. Therefore, the ground made out by the executing Court that the eviction order confirmed in C.R.P. No. 40/81 by the District Judge was passed on the compromise simpliciter and without the District Judge applying his mind to the terms of the compromise, is unsupportable and wrong. It is nothing but a view expressed by the Munsiff, without realising that the order was passed by the District Judge after giving anxious consideration to the terms of the compromise and after satisfying himself that the requirements of Section 29 bad been proved against the tenant. Therefore, it was too much for the executing Court to hold that the order passed by the District Judge in C.R.P. No. 40 of 1981 was a nullity and was one without jurisdiction.

10. As already stated above, the order of eviction maintained in C.R.P.No. 40 of 1981 is one passed by the District Judge according to law and after applying his mind anxiously to the details of the terms of the compromise and after satisfying himself that the eviction order passed under Section 29 was well justified by the material on record. Therefore, this ground relied on by the Trial Court in ordering restoration, is unsustainable.

11. It is no doubt true that the judgment-debtor had filed a caveat under Section 148A of the Code of Civil Procedure on 1-7 1981 alleging that he had valid objections regarding the executability of the said order passed by the Revisional Court, and requesting the Court to hear him before passing any order. The said caveat, as can be seen from the order sheet of the Court below, was registered as Mis. 50 of 1985. The execution case was filed after the filing of the caveat. The learned Counsel Sri Kantharaj submitted that in view of the fact that the caveat had been filed by the judgment-debtor anticipating that execution case, seeking delivery of possession of the property, would be filed against him, and in view of the fact that the executing Court did not hear the judgment-debtor before the issue of delivery warrant and before delivering possession to the landlord, the order of issue of warrant of delivery of possession and the actual delivery of possession were thus illegal and opposed to law.

12. Section 148A of the Code of Civil Procedure reads, as --

'Right to lodge a caveat.--

(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under Sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgment due, on the person by whom the application has been, or is expected to be, made, under Subsection (1).

(3) Where, after a caveat has been lodged under Subsection (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under Sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in Sub-section (1) has been made before the expiry of the said period.'

13. This Court has laid down in Siddalingappa G.C. v. G. C. Veeranna, 1981 (2) KLJ 323 that if a party has a right to file the caveat and if an order is passed without hearing him, then such an order passed becomes bad at law and thus is unenforceable. But the question is whether a party has got a right to file a caveat under Section 148A of the Code of Civil Procedure in the execution petition.

14. Section 148A requires the filing of the caveat in a suit or proceeding. Execution is admittedly not a suit. Whether the words 'proceeding instituted or about to be instituted' would cover the execution case also. Delivery of possession in execution of the order for eviction is regulated by Order 21 Rule 35 of the Code of Civil Procedure. The meaning of the word 'proceeding' cannot be so strictly construed as to shut out a right of a person under Section 148A. In all probability, the words 'proceeding instituted or about to be instituted', would include the execution case also. Merely because the execution case might come within the ambit of 'proceeding' as defined by Section 148A, it does cot give a right to the party to file a caveat in all the execution cases. In order to satisfy the ingredients of Section 148A, it must be shown that he has a right to appear before the Court on the hearing of such application. If the judgment-debtor is able to show that he has got a right to appear before the Court, then the lodging of a caveat would have some meaning.

15. Order 21 Rule 22 of the Code of Civil Procedure reads as--

'(1) Where an application for execution is made --

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of Section 44A, or

(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied 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, made on any previous application 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) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the end of justice.'

Therefore, unless the case falls under Rule 22 of Order 21 of the Code of Civil Procedure or under Order 21 Rule 37 of the Code of Civil Procedure, or under some provisions requiring the issuance of notice, the judgment-debtor is not entitled to a notice or is not entitled to be heard at all. The Jaw has wisely taken into conversation the well known maxim that the pains of the decree holder start only after the decree and therefore as per the said provisions it has dispensed with the: notice in some cases. If the Judgment debtor were to be again given a notice in all execution oases, the fruits of the decree cannot be realised by the decree-holder. The wisdom lying behind Order 21 Rule 22 or Rule 37 etc., would be a material circumstance to be taken info consideration while interpreting Section 148A of the Code of Civil Procedure.

16. The execution case in question was levied within two years from the expiry of the time given to vacate by the District Judge in C.R.P. No. 40 of 1981. The Judgment debtor is not a legal representative of a party to the eviction order. He does not come within the ambit of an assignee or a receiver in insolvency. Therefore, I do not think that the judgment-debtor had got any right to be heard before issuance of the delivery warrant or before the decree-holder was put in possession of the property in the execution case. Further, Order 21 Rule 22 (2) of the Code of Civil Procedure gives a discretion to the Court to dispense with the notice contemplated by Order 21 Rule 22 (1)(a),(b) and (c), if it finds that the issue of such notice is likely to result in unreasonable delay and would defeat the ends of justice. The wisdom behind it is that the Court should not commit unreasonable delay in giving relief to the party, who has fought the litigation for years and years to come. Therefore, in view of Order 21 Rule 22, it cannot be said that the judgment-debtor had got any right to be heard in the execution case itself. The view I have taken is strengthened by the decision in Nav Digvijaya Co. Operative Housing Society Limited v. Sadhana Builders and Ors., : AIR1984Bom114 .

17. Thus, the above discussion would go to show that unless a specific provision requires that the judgment-debtor should be heard in the course of the execution, he would not have any right to file the caveat and even if he has filed the caveat in anticipation of filing of the execution, the Court is not bound to hear him before issuing the process under Order 21 Rule 35 of the Code of Civil Procedure or other similar provisions. Therefore, the Court below, in my opinion, slipped info a serious error in holding that the judgment debtor was entitled to he heard before the issue of delivery warrant or before the delivery of possession, as he had filed a caveat. The filing of caveat, in such cases, is absolutely redundant and nothing but an attempt to protract the proceedings to the extent possible. Therefore, there is no contravention of Section 148A of the Code of Civil Procedure in this case.

18. Therefore, in the result, the order passed by the Court below, allowing the Miscellaneous Case and ordering restitution of possession, is set aside. The revision is allowed. In this case, if I may say so, the judgment-debtor has misused the sympathy extended to him by giving him two years time to vacate. The judgment-debtor should pay the costs of the decree-holder not only in the Court below, but also in this revision and should bear his own. The lawyer's fee is fixed at Rs. 250/- in the Court below as well as in this case.