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2017 DIGILAW 567 (JHR)

Ramauj Pandey v. Urmila Pandey

2017-03-23

APARESH KUMAR SINGH

body2017
JUDGMENT : Heard learned counsel for the petitioner and respondent nos. 1, 2 and 7 to 10, who are the contesting respondents. 2. Petitioner approached this Court being aggrieved by order dated 28.09.2015 passed in Execution Case No. 07-158/2012 pending in the Court of learned Civil Judge, (Sr. Division)-VI, Jamshedpur wherein its application under Order XXI Rule 26 for stay of the execution was rejected. 3. Petitioner contends that Miscellaneous Case No. 21 of 2013 preferred under Order IX Rule 13 was pending before the Court of learned Civil Judge, (Sr. Division)-I, Jamshedpur. On 01.08.2016, upon consideration of the case of the petitioner, notices were issued upon the respondent nos. 1 to 10 under registered covered with A/D as well as through ordinary process as well. However, in the meantime further proceedings in Execution Case no. 07-158/2012 were stayed. The matter was thereafter taken up on 02.02.2017 on I.A. No. 5306 of 2016 seeking vacation of stay and thereafter on 09.02.2017, following order was recorded:- “Learned counsel for the respondent nos. 1, 2 and 7 to 10, who are contesting the Miscellaneous Case No. 21 of 2013 submits that evidence on their behalf is to be led in the Miscellaneous Case. Petitioner herein has preferred Miscellaneous Case seeking to set aside ex-parte order passed in Title Partition Suit No. 15/2000, where preliminary decree was prepared on 03.07.2002 and final decree was prepared on 17.05.2002. The Execution Case No. 7-158 of 2012 from which the impugned order arises is pending since 2012. Earlier Execution Case No. 97 of 2002 preferred by the contesting respondents-decree holder was dismissed for default on 04.01.2006. Counsel for the contesting respondents Mr. Indrajit Sinha, submits that six weeks' time may be required to conclude their evidence. However, having regard to the fact that the matter is pending since 2013, contesting respondents should endeavor to conclude their evidence in Miscellaneous Case No. 21 of 2013 within a period of four weeks from today. Let the Court of Civil Judge, Sr. Division, Jamshedpur send the status report after conclusion of the period of four weeks. List this case on 16.03.2017 under the same heading as an unfixed case. Interim order dated 01.08.2016 shall continue till the next date.” 4. The order dated 09.02.2017 also reflects the ground on which proceedings in Execution case are being resisted by the petitioner herein. Division, Jamshedpur send the status report after conclusion of the period of four weeks. List this case on 16.03.2017 under the same heading as an unfixed case. Interim order dated 01.08.2016 shall continue till the next date.” 4. The order dated 09.02.2017 also reflects the ground on which proceedings in Execution case are being resisted by the petitioner herein. This Court, therefore, considered it fit to direct the contesting respondents to conclude their evidence in Misc. Case No. 21 of 2013 within a period of four weeks. As per the status report furnished by the learned Civil Judge (Sr. Div.)-I, Jamshedpur through letter no. 19/17 dated 09.03.2017, the witnesses of the contesting opposite party nos. 7 to 10 therein have been examined on a number of dates. Evidence of the opposite parties has been closed and the Miscellaneous Case No. 21 of 2013 was posted for final hearing on 22.03.2017 with a direction to the parties to come ready for final hearing. Learned Civil Judge, (Sr. Div)-I, Jamshedpur has also stated that in the Miscellaneous Case, out of 10 opposite parties, opposite party nos. 1 and 2 did not appear after issuance of summon as well as paper publication and the case is being proceeded ex-parte vide order dated 10.06.2015. Opposite party nos. 3 to 6 are not contesting in Miscellaneous Case and have not adduced any evidence on their part. Only opposite party nos. 7 to 10 are contesting the Miscellaneous Case and evidence on their part has been concluded. Though opposite party nos. 1 and 2 had appeared thereafter through Vakalatnama on 04.02.2017, but neither any evidence nor anyone has appeared on their behalf before the Court for praying to adduce the evidence. 5. Learned counsel for the petitioner submits that the Miscellaneous Case was taken up yesterday before the learned Court and has been adjourned on the request of the learned counsel for the contesting respondents. It is submitted that the Miscellaneous Case is ripe for hearing and a direction may be issued to conclude it in a time bound manner. It is further submitted that the proceedings of Execution Case may be kept in abeyance awaiting outcome of the Miscellaneous Case where the petitioner seeks setting aside of the decree passed in Title Partition Suit No. 15 of 2000 from which the Execution Case No. 07-158 of 2012 arises. 6. It is further submitted that the proceedings of Execution Case may be kept in abeyance awaiting outcome of the Miscellaneous Case where the petitioner seeks setting aside of the decree passed in Title Partition Suit No. 15 of 2000 from which the Execution Case No. 07-158 of 2012 arises. 6. Learned counsel for the contesting respondents submits that their evidence has been concluded and hearing in the miscellaneous case is going on. He however, has resisted the prayer made for stay of the Execution Case in the meantime. 7. I have considered the gamut of facts and the submissions made on behalf of the learned counsel for the parties and gone through the impugned order as well. This Court is of the considered opinion that since the petition being Miscellaneous Case No. 21 of 2013 for setting aside of the ex-parte order passed in Title Partition Suit No. 15 of 2000 is now ripe for final adjudication, it would be proper to direct the learned Court of Civil Judge, (Sr. Div)-I, Jamshedpur to conclude the same and pass final order thereupon preferably within a period of six weeks from the date of receipt of a copy of this order. Petitioner as well as contesting respondents and other parties would co-operate in the matter and not take any unnecessary adjournment. Proceedings in the Execution Case No. 07-158/2012 shall be kept in abeyance by the learned Civil Judge, (Sr. Div)-VI, Jamshedpur where it is pending, for a period of six weeks or till the date of the order passed in Miscellaneous Case No. 21 of 2013, whichever is earlier. 8. Needless to say, depending upon outcome of the Miscellaneous Case, the learned Executing Court would proceed in the Execution Case thereafter. 9. The writ petition is disposed of in the aforesaid terms. 10. Pending I.A. stands closed.