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2015 DIGILAW 543 (JHR)

Jagdish Pandey v. Urmila Pandey

2015-04-28

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 22.07.2013 and order dated 04.01.2014 in Execution Case No. 07 of 2012, the present writ petition has been filed. 2. Title (Partition) Suit No. 15 of 2000 was filed by one Ramjee Pandey for 1/5th share in the suit schedule property. A preliminary decree was prepared on 07.03.2002 and the final decree was prepared on 17.05.2002. The father of the present petitioner was defendant no. 1 in the said partition suit. The father of the petitioner died on 26.11.2003. The plaintiff filed Execution Case No. 97 of 2002 which was dismissed in default on 14.01.2006. In the meantime, a compromise agreement was executed. One of the co-sharers against whom an ex-parte decree was passed, filed application under Order IX Rule 13 CPC however, the same was dismissed in default. Some of the other co-sharers filed Misc. Case No. 21 of 2013 for setting-aside the ex-parte decree and the said case has been admitted for hearing. The substituted plaintiffs filed second Execution Case bearing Execution Case No. 7(158/12) of 2012. in which order dated 22.07.2013 was passed against the judgment-debtor nos. 2, 3, 5, 7 & 9 and the execution proceeded ex-parte against the said judgment-debtors. The petitioner is judgment-debtor no. 3. The petitioner appeared on 19.08.2013 and filed petition for recalling order dated 22.07.2013 however, the same has been dismissed vide order dated 04.01.2014. 3. Heard the learned counsel for the parties and perused the documents on record. 4. Mr. Rajiv Ranjan, the learned counsel for the petitioner submits that without following the procedure under Order V Rule 19 CPC, the Execution Case was set for ex-parte hearing against the petitioner on 22.07.2013. After the parties compromised the matter, the petitioner had no inkling of filing of the second Execution Case. Since the summons were never served upon the petitioner, the petitioner could not appear in Execution Case No. 7(158/12) of 2012. however, after coming to know about Execution Case No. 7(158/12) of 2012, the petitioner promptly appeared and filed application dated 19.08.2013 seeking recall of order dated 22.07.2013. 5. As against the above, Mr. A. K. Das, the learned counsel appearing for the respondents submits that the respondent no. 1 is the wife of the original plaintiff and the respondent no. 2 is her daughter. 5. As against the above, Mr. A. K. Das, the learned counsel appearing for the respondents submits that the respondent no. 1 is the wife of the original plaintiff and the respondent no. 2 is her daughter. The suit was filed in the year, 2000 however, even after 15 years, the decree in present suit has not been executed. In the meantime, the judgment-debtors have started selling a part of the suit property. Photo copy of the agreement is taken on record. The learned counsel tenders copy of sale-deed dated 11.12.202013 executed by one Awadhesh Kumar Pandey. It is submitted that the defendants-judgment debtors absented themselves at different stages in the proceeding and by filing application for restoration, recall of order etc. execution of decree passed in the present suit has been thwarted. 6. I find that in the second Execution Case, the substituted decree-holders have stated that a compromise agreement was executed under which the decree-holders were offered amount of Rs. 30,00,000/for their 1/5th share however, the said amount was not paid within the stipulated period and thus, the agreement stood terminated. The power of attorney given by the decree-holders in favour of other judgment-debtors were also cancelled. It is alleged that the judgment-debtors thus cheated the decree-holders. The notice under Order XX1 Rule 16 CPC was issued on 11.01.2013 directing the petitioner-herein to appear on 18.02.2013. The original record of the case has been called from the concerned Executing Court and, I have perused the same. The endorsement by the Process Server indicates that on 13.02.2013 at around 12.00 noon the Process Server reached the house of the petitioner when he found that the petitioner was not at home. It further appears that a copy of notice was pasted on the house of the petitioner. The Process Server has made endorsement that the witnesses refused to sign the notice. However, the affidavit of the Serving Officer was not filed in the Court. I further find that the envelop containing summons to the petitioner has not returned undelivered though, the envelops through which notices were sent to other defendants have returned unserved. The Trial Court has recorded that service of notice upon judgment-debtor nos. 2. 3. 5, 7 & 9 is presumed valid and ordered that the execution shall proceed ex-parte against the said judgment-debtors. The Trial Court has recorded that service of notice upon judgment-debtor nos. 2. 3. 5, 7 & 9 is presumed valid and ordered that the execution shall proceed ex-parte against the said judgment-debtors. I am of the opinion that the procedure prescribed under Order V Rule 19 CPC has not been followed in the present case. In “Sushil Kumar Sabharwal v. Gurpreet Singh” reported in (2002) 5 SCC 377 the Hon'ble Supreme Court has observed as under: “12. The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being “proved” that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte................” 7. Considering the above facts, the impugned orders dated 22.07.2013 and 04.01.2014 are hereby set-aside. The petitioner shall appear in Execution Case No. 7(158/12) of 2012. The Trial Court shall proceed with the Execution Case, expeditiously. It is further ordered that till the disposal of the Execution Case, the parties shall not dispose of and/ or create 3rd party rights in the suit schedule property. This order shall bind all the defendants/proposed defendants. 8. Let the record of the case be transmitted to the concerned Court, forthwith. 9. I.A. No. 964 of 2015 also stands disposed of.