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2024 DIGILAW 535 (PNJ)

Parmod Alias Rinku v. Krishna Trading Company

2024-03-05

GURBIR SINGH

body2024
JUDGMENT Mr. Gurbir Singh, J. Challenge in this petition is to the order dated 30.10.2023 passed by learned trial Court whereby application moved by the petitioner for staying the execution proceedings filed in pending application under Order 9, Rule 13 CPC for setting aside the judgment and decree dated 04.05.2018, has been dismissed. 2. Brief facts as necessary for the disposal of this petition are that respondent No.1 filed a suit for recovery against the petitioner and respondent No.2. The petitioner was proceeded ex-parte whereas respondent No. 2 contested the suit. 3. Learned counsel for the petitioner has argued that the petitioner was not having any knowledge about the pendency of the suit. He was neither served nor engaged any counsel. He only came to know about the passing of ex-parte judgment when he received a registered AD envelope containing a caveat petition and he immediately filed an application under Order 9, Rule 13 CPC for setting aside the ex-parte judgment and decree dated 04.05.2018. It is further argued that the account was being maintained in the name of Kuldeep Singh only by the respondent in the course of business. During trial, signatures of Kuldeep Singh was got compared and the same were found to be of Kuldeep Singh. The petitioner never gave any instructions to Advocate Karambir Kashyap to appear on his behalf. The learned Court held that he has filed memo of appearance on behalf of the petitioner. It is further submitted that the petitioner is residing separately from Kuldeep Singh-his brother. 4. Learned counsel for the respondent has argued that summons were sent to the petitioner but the same were received back served through Kuldeep Singh who is his real brother. Service upon the male member present in the house is valid service. Moreover, Advocate Karambir Kashyap filed the Memo of appearance on behalf of the petitioner but on the next date the petitioner did not appear, so petitioner was proceeded against ex-parte. The petitioner and respondent No.2 are residing in the same house in the same village. He is estopped from saying that he was not aware of the pendency of the case. The petitioner and respondent No.2 are residing in the same house in the same village. He is estopped from saying that he was not aware of the pendency of the case. Although account was opened in the name of Kuldeep Singh-brother of the petitioner as they were having joint land but both the brothers were receiving money from time to time and there are also signatures of the petitioner on various entries with regard to the receipt of money. The Courts below has rightly dismissed the application. He has placed reliance on case Joginder Singh v. Surinder Pal Singh: 2001 (2) R.C.R(Civil) 227 and Deep Singh and others v. Amrik Singh and another: 2004 (2) R.C.R.(Civil) 728. 5. I have heard the submissions made by learned counsel for the parties. 6. There is no dispute that petitioner did not personally receive the summons. The summons were sent at his residential address. Those were received by his brother Kuldeep Singh-respondent No.2 who was co-defendant in the suit. It is a specific case of the petitioner that he is residing separately from his brother and they are not residing together. It is a question of evidence whether petitioner is residing in a separate house or both the brothers are residing in the same house and that can only be decided on the basis of evidence to be led in proceeding under Order 9, Rule 13 CPC. The authorities cited by the learned counsel for the respondent No.1 pertain to suit for specific performance wherein it was held that inhabitants of a small village were presumed to have knowledge of the agreement to sell executed in favour of one party of the same village. So, said authority is of no help to the respondent No.1. Since no Vakalatnama has been filed in the suit by the counsel on behalf of the petitioner so prima facie it is also a question to be determined on the basis of evidence whether the petitioner authorized Advocate Karambir Kashyap to appear in the suit on his behalf. During pendency of the application under Order 9, Rule 13 CPC, the amount of decree is going to be recovered by selling the property of the petitioner, it would definitely cause irreparable loss to the petitioner. 7. During pendency of the application under Order 9, Rule 13 CPC, the amount of decree is going to be recovered by selling the property of the petitioner, it would definitely cause irreparable loss to the petitioner. 7. Keeping in view the facts and circumstances, I am of the view that if petitioner deposits 50% amount of decree in the Executing Court then rights of the other party is also secured. 8. In the light of above discussion, this revision petition is allowed and order date 04.05.2018 is hereby set aside. The execution of decree against the petitioner is hereby stayed subject to the condition that the petitioner has all deposit 50% of the amount of decree in the Executing Court within 15 days on receipt of the certified copy of this order and the said amount shall be kept in the FDR by the Executing Court subject to decision of application under Order 9, Rule 13-->13 CPC. Keeping in view, that it was a money decree so the learned trial Court is directed to decide the application under Order 9, Rule 13 expeditiously.