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2013 DIGILAW 2125 (MAD)

D. Babu v. C. Shahid Ahmed

2013-06-21

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The petitioner before this Court is the defendant in a suit for recovery of possession and for arrears of rent in O.S.No.158 of 2007 on the file of the District Munsif, Ambur. He is aggrieved against the order passed by the court below in I.A.No.70 of 2010 in E.P.No.50 of 2009 dated 18.09.2010 wherein and whereby his application filed under Order 41 Rule 5(2) of C.P.C. seeking for stay of the execution proceedings, was rejected. 2. Heard the learned counsel appearing for the petitioner as well as the respondent. 3. In this case, the petitioner as the defendant suffered an exparte decree on 06.11.2008. He filed an application in I.A.No.336 of 2008, seeking to set aside the said exparte decree. The said application was also allowed on a condition that the petitioner should pay a sum of Rs.1,000/-to the other side within the time stipulated. The fact remains that the said cost was not paid by the petitioner and consequently, I.A.No.336 of 2008 came to be rejected on 13.02.2009 for non compliance of the conditional order. Thus, the exparte decree passed against the petitioner on 06.11.2008 is still subsisting. Nothing is placed before this Court or contended by the learned counsel appearing for the petitioner that any step is taken as against the order passed on 13.02.2009. 4. On the other hand, it is seen that pursuant to such exparte decree, an execution petition in E.P.No.50 of 2009 came to be filed by the respondent herein against the petitioner wherein also an exparte order was passed on 06.10.2010 against the petitioner. Here again, it is seen that the petitioner has not taken any steps to set aside the said exparte order dated 06.10.2010. On the other hand, he filed an application under Order 41 Rule 5(2) of C.P.C seeking for stay of the execution proceedings pending an order to be obtained from the Appellate court. The said application was rejected by the court below by observing that the petitioner has not placed any materials to show that some proceeding is pending before the Appellate forum or before this court by way of civil revision petition. Therefore, the court below has found that the application filed by the petitioner is not maintainable and consequently, the same was rejected. Therefore, the court below has found that the application filed by the petitioner is not maintainable and consequently, the same was rejected. I find that the reasonings given by the court below in rejecting the petitioner's application do not warrant any interference in this civil revision petition. Further it is also to be noted that the petitioner was set exparte on 06.11.2008 in the suit and even though an attempt was made by him to get it set aside, the fact remains that such attempt ended in failure as he has not complied with the conditional order dated 13.02.2009. Therefore, the exparte decree is in force against the petitioner as on date. Learned counsel for the petitioner submits that the petitioner has not filed any application thereafter before the trial court. When that being the factual position, the E.P. filed by the respondent cannot be stalled unless there is an order passed by the higher forum staying the E.P. before the Executing Court. Further, the fact remains that even in the E.P., the petitioner was set exparte on 06.10.2010 and it appears that no step is taken by the petitioner so far to get the said order set aside till this date. Therefore, the petitioner having been set exparte in the execution proceedings, the application seeking for stay of proceedings pending orders to be obtained from the appellate forum is not maintainable. When a person is set exparte, unless and until such order is set aside, he cannot be permitted to take part either in the consequential or subsequent proceedings. Then there is no meaning in setting a person exparte. Therefore, the petitioner having been set exparte already both in the suit and in the E.P., is not entitled to get an order under Order 41 Rule 5 of C.P.C. 5. Considering all the facts and circumstances, I find no merits in the civil revision petition. Accordingly, the same is dismissed. No costs. The connected miscellaneous petition is also dismissed.