Mohinder Singh vs Anil Kumar Sood

Jyotsna Rewal Dua, J

In essence, the prayer of the petitioner is against order dated 11.01.2023, whereby warrant of attachment was ordered to be issued qua recovery of decretal amount from the properties of the Judgment Debtor (present petitioner).

Heard learned counsel on both the sides.

Shorn of unnecessary details, relevant factual position which comes out is that an ex-parte decree was passed by learned Trial Court in faovur of the respondent on 30. 03.2023. The respondent set out to execute this judgment and decree. During pendency of the execution petition, the present petitioner moved an application under Order 9 Rule 13 of Code of Civil Procedure for setting aside ex-parte judgment and decree. It is not in dispute that the said application is still pending adjudication. In the given facts and circumstances when petitioner’s application for setting aside the ex-parte judgment and decree is still pending for adjudication, the warrant of recovery of attachment should not have been issued in the execution petition moved by the respondent, seeking enforcement of that very judgment and decree. Hence, for this very reason, this petition is allowed. The impugned order dated 11.01.2023, whereby warrant of attachment was issued qua recovery of decretal amount from the properties of the Judgment Debtor (present petitioner), is set aside.

Learned Trial Court is directed to first decide the application moved by the petitioner under Order 9 Rule 13 of Code of Civil Procedure. Learned counsel on both sides have submitted that the parties have completed the pleadings and have also led evidence in that application. The application is stated to be ripe for hearing. The learned Trial Court is directed to decide the application by 31.07.2023. The parties through their learned counsel are directed to appear before learned Trial Court on 03.07.2023.

The present petition stands disposed of in the above terms alongwith pending miscellaneous application(s), if any.