Munna Lal Sen vs Ajay Kumar Savita

Sujoy Paul, J.—Heard. This petition under Article 227 of Constitution is directed against the order Annexure P/1 dated 24-07-2013. In a suit for specific performance (Annexure P/2), the Court below proceeded ex-parte against the petitioner on 24-08-2007 and fixed the matter for final hearing on 13-08-2007. Petitioner did not turn up, therefore, ex-parte judgment dated 29-10-2007 (Annexure P/7) was passed.

Petitioner after considerable long time filed writ petition before this Court challenging the said judgment. That petition was registered as Writ Petition No. 4016/13(1). On 15-07-2013 by Annexure P/12 petitioner withdrew the said petition with liberty to take appropriate steps for setting aside ex-parte judgment. In turn, he filed Annexure P/13 in the execution proceeding which was initiated in the meantime by decree-holder. This application is rejected by the Court below by impugned order.

Shri Bohre submits that in view of the order passed by Writ Court, petitioner has filed this application yet another application under Order IX Rule 13 of CPC was also filed, therefore, the Court below should have stayed the proceedings.

I have heard learned counsel for the parties and perused the record.

The Court below after perusal of record found that the judgment was passed way back on 29-10-2007, Kabja and "Kurki" warrants have already been issued. This Court in Writ Petition No. 4016/13 has not given any finding. Said writ petition was dismissed as withdrawn. There is no valid reason for staying the execution proceeding. Petitioner''s earlier conduct is also taken into account by the Court below with the finding that the petitioner remained absent since beginning and never cooperated in the proceedings. For these reasons, the application aforesaid is rejected. In the considered opinion of this Court, the Court below has given cogent and justifiable reason. This Court cannot interfere against such order in routine manner. If order is without jurisdiction, suffers from any manifest procedural impropriety or palpable perversity, interference can be made. Another view is possible is not a ground for interference. This view is taken by the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . Thus, I find no such ingredient on which interference can be made by this Court under Article 227 of Constitution. Petitioner''s application which is rejected by the Court below is not even supported by an affidavit. No reason is assigned by the petitioner as to why he did not take appropriate steps immediately after passing of the judgment by the Court below. On the basis of aforesaid, in my opinion, this petition is meritless and is hereby dismissed.