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2008 DIGILAW 214 (JK)

Gh. Ahmad Wani v. Bank Of India

2008-05-26

SUNIL HALI

body2008
This revision petition has been preferred against an order passed by learned Additional District Judge (Bank Cases) Jammu. The said order has been passed by the court below in the course of seeking implementation of execution petition pending before the said court. 2. Brief facts of this case are that a decree was passed by the trial court on 8.4.1996. It was an ex parte decree. An application came to be filed by the present petitioner and other defendants in the year 1997. The ground taken in the application was that they had no knowledge about the pendency of the suit in the court below. It was averred that the defendants were served by publication in Daily Excelsior which had no circulation in village Bharat in District Doda. It was also pleaded that they had no knowledge of English. The said application is pending before the trial court from 1997. The petitioner again failed to appear before the trial court and his application for setting aside the exparte decree was dismissed in default on 27.7.2007. 3. After dismissal of his application the execution proceedings initiated against the petitioner-defendant got revived. In pursuance to the execution proceedings an order came to be passed by the trial court directing attachment of the property of the defendants. The order directs SDPO Bakshi Nagar, Jammu to effect the execution of the decree. It is this order of the executing court which is subject matter of challenge before the court. It is important to mention that on the same date the petitioner and other defendants filed an application for restoration of application for setting aside the exparte judgment and decree before the court below. On this application coming up before the court it was ordered that the petitioner should furnish a bank guarantee to the tune of the amount under execution and in case he does so the order passed by the executing court shall remain stayed. It is important to mention that both the execution proceedings and application for setting aside the exparte decree were pending before the same court. 4. After the application for setting aside exparte decree was dismissed on 31.7.2007 the court revived its order for seeking the execution of the decree by attachment of the property on 31.7.2007. This order was reiterated by this court on 29.8.2007. 4. After the application for setting aside exparte decree was dismissed on 31.7.2007 the court revived its order for seeking the execution of the decree by attachment of the property on 31.7.2007. This order was reiterated by this court on 29.8.2007. In the order dated 29.8.2007 the court records that the warrants of attachment issued have been received back unexecuted. It is this order which is subject matter of challenge before this court. 5. I have heard learned counsel for the parties and perused the record. 6. Mr. D.S. Thakur states that the executing court could not have proceeded in the matter as application for restoration of his application for setting aside exparte decree was still pending before the court below. As a matter of fact he states that the court has failed to exercise its jurisdiction in not staying the operation of the decree. His other contention is that two contradictory orders have been passed by the court on 29.8.2007. 7. The first order seeks attachment of the property of the petitioner through SDPO Bakshi Nagar, Jammu and the other order stays operation of the decree subject to the furnishing of bank guarantee to the tune of decretal amount. Both the arguments are misconceived. Merely because an application for setting aside exparte decree is filed could not cast an obligation on the court below to stay the operation of the decree. As a matter of fact, the setting aside of exparte decree under O. 9 Rule 13 CPC is not to be done as a matter of course. The party seeking setting aside exparte decree has to show a sufficient cause before a decree can be set aside, more particularly when the application for setting aside exparte decree has been filed after the expiry of limitation. There is no legal mandate on the court to stay an execution of the decree without satisfying itself to the contents of the application. 8. In the present case after the application for setting aside the exparte decree was filed, the execution was stayed which is evident from the order dated 31.7.2007. This order clearly reveals that the execution proceedings have been revived only after application for exparte decree has been dismissed. What was pending before the court on 29.8.2008 was an application for restoring the application for setting aside exparte decree and not an application for setting aside exparte decree. This order clearly reveals that the execution proceedings have been revived only after application for exparte decree has been dismissed. What was pending before the court on 29.8.2008 was an application for restoring the application for setting aside exparte decree and not an application for setting aside exparte decree. The court below had shown indulgence in staying the execution of decree subject to furnishing of bank guarantee. Even then the petitioner did not feel satisfied with this direction and has come in revision before this court and obtained an order for stay on 7.9.2007. 9. The only question which is required to be considered in this revision petition is as to whether order dated 29.8.2007 is revisable. The petitioner has not questioned the order dated 31.7.2007 but has only come in revision against order dated 29.8.2007 which reiterates order passed on 31.7.2007. Be that as it may, this court is called upon to determine the legality of this order. The court in exercise of its power under O. 21 has sought the attachment of property in execution of decree . The petitioner has not questioned the power of this court to pass such an order. As a matter of fact the legality and otherwise of this order is not subject matter of challenge. The only challenge in this revision petition is that it was incumbent upon the court to have stayed the execution of decree because the application for restoring an application for setting aside exparte decree was pending. This certainly does not call for intervention from the court. As already discussed hereinabove the court below had no obligation under law to stay the execution of decree merely because an application for setting aside exparte decree has been filed. It is also averred in the petition that the summons were not served upon him in the suit as such the order of proceeding exparte against the petitioner was bad. While reading through the title of the petition this clearly manifests that petitioner has shown his address at Jammu. Any way this is matter which is required to be gone through by the trial court while deciding an application under O. 9 R 13 CPC. This court would not like to enter into this debate. 10. While reading through the title of the petition this clearly manifests that petitioner has shown his address at Jammu. Any way this is matter which is required to be gone through by the trial court while deciding an application under O. 9 R 13 CPC. This court would not like to enter into this debate. 10. The other ground urged by the petitioner is that two contradictory orders have been passed on the same date, one by the executing court seeking attachment of the property and the other by the decretal court staying the execution subject to furnishing of bank guarantee. 11. There is no dispute that executing court has to execute the decree in accordance with law. The decretal court has the power to stay the decree. While the execution proceedings were going on the decretal court had stayed the execution of the decree. After staying the execution proceedings, no further action could be initiated by the executing court. In this case the order of stay has been passed by the decretal court. It appears that the petitioner was keeping track of the proceedings and when he came to know that the order of attachment has been passed, he filed an application for staying the decree. The trial court has stayed the execution of decree subject to furnishing of bank guarantee. It is not discernible how two orders are contradictory. The order of the executing court has been stayed by the decretal court subject to furnishing of bank guarantee which in essence does not determine any right of the petitioner. As a matter of fact the order impugned protects interest of the petitioner who is required to furnish bank guarantee in terms of order passed by the decretal court on the same day. Order of executing court gets stayed subject to the condition provided in the order of decretal court. None of grounds mentioned in the revision petition are covered by section 15 of CPC and I find no reason to interfere with the order of trial court. None of the grounds taken by the petitioner in his revision merits any consideration as both are legally and factually misconceived. Before parting with this judgment I would like to say that the trial court has not shown any promptness in disposing of the application under O.9 Rule 13 CPC. None of the grounds taken by the petitioner in his revision merits any consideration as both are legally and factually misconceived. Before parting with this judgment I would like to say that the trial court has not shown any promptness in disposing of the application under O.9 Rule 13 CPC. The application is pending for more than a decade before the trial court and I fail to understand the reasons for such a delay. The fact of the matter is that the decree of the trial court is not being executed even though the same has been passed 12 years back. It has taken the trial court more than a decade to decide an application under O. 9 R.13 CPC which pricks the conscious of this court. The courts should not become party to the machination of the litigants. I, therefore, direct the trial court to decide the application for restoration for setting aside the exparte decree within a period of two month from the date copy of this order is received by that court. I hope and pray that this litigation is brought to some logical conclusion. 12. Accordingly, I dismiss this application with costs of Rs. 1000/-. Let the parties appear before the trial court on 4.6.2008.