Kanta Devi vs Hem Singh

Sandeep Sharma, J

Having regard to the nature of order, this Court proposes to pass, it is not necessary to issue notice to the respondent because in the event of notice being issued, respondent would be unnecessarily compelled to engage a lawyer to defend her in this Court and as such, same is dispensed with.

By way of present petition filed under Article 227 of Constitution of India, challenge has been laid to order dated 28.2.2020, passed by the learned Civil Judge-2, Sunder Nagar, District Mandi, H.P., in execution petition No. 2-X/2018 having been filed by the respondent-DH, for execution of decree dated 18.1.2019, whereby the executing Court exercising power under Order 21 Rule 34 CPC, has appointed official to execute the sale deed in favour of the DH on behalf of JD.

Having heard learned counsel for the petitioner and perused material available on record, this Court finds that since JD despite having received notices, failed to put in appearance, she came to be proceeded ex-parte. After passing of the aforesaid ex-parte order, court below while exercising power under Order 21 Rule 34 appointed court official i.e. Superintendant of the court to execute the sale deed in favour of the DH. Court below while appointing court official to execute the sale deed also directed the DH to file the draft of sale deed on or before 18.3.2020.

Perusal of order dated 18.3.2020, reveals that after passing of order dated 20.2.2020, JD had also filed application under Order 9 Rule 7 CPC, praying therein for setting aside ex-parte order, but such application came to be rejected vide order dated 18.3.2020 on the ground that application is not maintainable at this stage because execution order has been already passed vide order dated 20.2.2020. In the aforesaid background, the petitioner has approached this Court in the instant proceedings, praying therein to set aside orders dated 20.2.2020 and 18.3.2020, passed by the court below.

Though having carefully perused order dated 20.2.2020, this Court finds that the JD has been callous and negligent in prosecuting her case before the court below and as such, rightly came to be proceeded ex-parte, but once application under Order 9 Rule 7 CPC that too immediately after passing of order dated 20.2.2020, had been filed before the court below, it ought to have considered and decided the same on its own merits. In the case at hand, perusal of order dated 28.3.2020 reveals that court below proceeded to dismiss the application filed by JD on the ground that same is not maintainable since order of execution stands passed vide order dated 20.2.2020, but such view taken by the court below does not appear to be correct.

At this stage, it is pertinent to submit that no consequential steps, if any, ever came to be taken at the behest of the court official appointed by the court below to execute the sale deed in terms of order dated 20.2.2020 because draft sale deed was ordered to be placed/produced on 18.3.2020, but perusal of order dated 18.3.2020, itself suggests that on that day, learned counsel representing the DH sought more time to prepare the fresh draft deed and court accordingly, granted time till 7.2.2020. Since at the time of filing of the application under Order 9 Rule 7 CPC, order dated 20.2.2020, was yet to be given effect by the officer appointed by the court below, court below instead of dismissing the application under Order 9 Rule 7 CPC filed by the petitioner on the ground of maintainability ought to have decided the same on its own merits.

Consequently, in view of the above, present petition is allowed and order dated 28.3.2020 in as much as application under Order 9 Rule 7 CPC has been rejected, is set-aside and court below is directed to consider and decide the application afresh after affording opportunity of being heard to both the parties. Till the time aforesaid application is decided on its own merits, order dated 28.3.2020 shall remain in abeyance. Needless to say, if application under Order 9 Rule 7 CPC is allowed by the court below, order dated 28.2.2020 would automatically come to an end because in that eventuality, opportunity would be required to be given to the JD to file objection, if any, to the execution petition. Learned counsel for the petitioner undertakes to cause presence of his client before the court below on 10.8.2020, enabling the court below to proceed with the matter afresh in terms of direction contained in the instant order. Registry is also directed to apprise the court below with regard to passing of instant order, enabling it to do the needful well within the stipulated period. In the aforesaid terms, petition stands disposed of, so also, pending applications if any.

Dasti on usual terms.