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2009 DIGILAW 190 (JHR)

Sarla Devi v. Mohan Mahto

2009-02-06

D.G.R.PATNAIK

body2009
JUDGMENT Prayer in this writ application is for quashing the order dated 26.06.2008 passed by the Munisf, Khunti rejecting the petitioners’ petition dated 06.06.2008 for setting aside the ex-parte order dated 27.05.2008 passed by the learned court below in a execution proceeding vide Execution Case No. 5 of 2007. 2. Heard learned counsel for the petitioners and learned counsel for the respondents. 3. Before going into the grounds advanced by the petitioners for assailing the impugned order of learned court below, it is felt appropriate to briefly record the history of the present case. A suit for partition was instituted by the respondents /plaintiffs against the present petitioners/defendants way back in 1979. A preliminary order was passed by the trial court in favour of the plaintiffs and later, after giving opportunity to the defendants to be heard, the final decree was passed in July, 2007. The defendants had preferred an appeal against the final decree which is presently subjudice. In the meantime, the plaintiffs/decree holders had filed an execution proceeding before the Executing Court sometime in the year 2007, after the final decree was passed. In the Execution proceedings notices were issued to the judgement debtors/present petitioners but they did not appear in the execution proceedings. Though a few of the judgement debtors had appeared but the remaining did not. The proceedings remained pending, awaiting the appearance of all the judgement debtors. Repeated notices were issued to them. Ultimately, the service reports were received along with the endorsement of the process server. Learned court below had observed from the reports that while the notices were accepted by some of the noticees, the others had refused to accept the same. Accepting the process server’s report, the learned court below had declared that the notices on the concerned judgement debtors, were effectively served. When the next date was fixed in the case, the non-appearing parties had filed their appearance through their counsel. A prayer was made by the learned counsel on their behalf by way of raising objections against the maintainability of the execution proceedings and seeking time to file objections under order 21 Rule 105 (3) C.P.C. The learned court below conceded the prayer of the learned counsel to produce the order of stay, if any, passed by the appellate court in the pending appeal. No order of stay was either obtained or filed by the petitioners and neither did they file any objections against the continuance of the proceeding in the court below even on the next date. Under such circumstances, the court below vide the impugned order posted the case to the next date directing the decree holders to file the requisites in the mean time, for issuance of writ. The petitioners, thereafter, filed their petition praying for recalling the ex-parte order dated 27.05.2008 but the learned court below rejected the prayer. 4. From the perusal of the impugned order, it does not appear that the learned court below had passed any such order which would amount to rejecting the petitioners’ prayer for filing their objections in the execution proceedings. The petitioners appear to have presumed that by the ex-parte order dated 27.05.2008 whereby the decree holders were called upon to submit the requisites for issuance of a writ, the petitioners have been denied the opportunity of filing their show cause replies against the execution proceedings. 5. Considering the aforesaid facts and circumstances and after hearing learned counsel for the respondents, it does appear from the conduct of the petitioners that they had full knowledge of the pendency of the execution proceedings from the beginning, since some of the other members of the same family to which the petitioners belong, had already appeared in the execution proceedings as judgement debtors. Yet, it appears that the petitioners had delayed their appearance in the proceedings deliberately thereafter stalling the proceedings for more than 1½ years. It also appears that inspite of opportunity given by the court below, the petitioners did not choose to file their written objections promptly and even without there being any specific order denying them the opportunity of filing their objections. Yet, the petitioners have ventured to invoke the writ jurisdiction of this Court. 6. In the light of above facts and circumstances, the matter is remitted back to the court below with a direction to the petitioners to file their objections if any, in the execution proceedings within one month from the date of this order. Upon such filing, the court below shall accept and consider the same but subject to the condition that the petitioners deposit a cost of Rs. 15,000/-(Rupees fifteen thousand) only. With these observations, this writ application is disposed of.