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Judgment
F.M. Reis, J.—Heard Shri A. Palekar, learned Counsel appearing for the Petitioner and Shri T. George John, learned Counsel appearing for the Respondent.
Rule. Heard forthwith with the consent of both the Counsel. The Respondent waive service.
The above petition challenges the order dated 6/12/2010 passed by the learned District Judge-2, South Goa, Margao in Execution Application No. 73/2010.
Heard learned Counsel for the parties.
Shri Palekar, learned Counsel appearing for the Petitioner essentially assailed the impugned order on the ground that the Petitioner is not liable to pay the amount sought to be recovered from the Petitioner as according to him the Petitioner was not a party to the decree which is sought to be executed. The learned Counsel further pointed out that the impugned order directing the payment of the amount by the Petitioner has been passed without hearing the Petitioner nor any reasons have been given by the learned Judge for passing the impugned order. The learned Counsel further pointed out that the learned Judge has exceeded its jurisdiction whilst passing the impugned order and, as such, the impugned order deserves to be quashed and set aside.
On the other hand, Shri T. George John, the learned Counsel appearing for the Respondent has pointed out that the original judgment debtor and the Petitioner are one commercial unit. The learned Counsel further pointed out that there was sufficient material produced by the Respondent to establish that the Petitioner is liable to pay the said amount.
Having heard the learned Counsel and on perusal of the record, I find that the learned Judge whilst passing the impugned order has not given any reasons as to how the Petitioner is liable to pay the decreetal amount. The material alleged to have been produced by the Respondent has not been scrutinized by the learned Judge whilst passing the impugned order. I find no discussion at all by the learned Judge on that aspect whilst passing the impugned order. The learned Counsel appearing for the Respondent in fact was unable to point out any reason given by the learned Judge to come to such conclusion.
Hence, in the interest of justice, I find it appropriate that the impugned order be quashed and set aside and the learned Judge be directed to decide the matter afresh after hearing the Petitioner as well as the Respondent on all aspects of the dispute. At this stage, Shri T. George John, the learned Counsel appearing for the Respondent pointed out that there is inordinate delay in recovering the amount payable to the Respondent pursuant to the decree which is being executed. It is also brought to my notice that whiles issuing notice in the above petition, this Court has passed an order dated 31/12/2010 restraining Respondent No. 1 from withdrawing the amount deposited by the Petitioner before the Executing Court. The said order shall continue until the disposal of the said execution proceedings, but however, the amount deposited shall be subject to the final orders which shall be passed by the Executing Court in the said proceedings. The learned Judge is directed to decide the matter in controversy in the said Execution Proceedings No. 73/2010, as expeditiously as possible and in any event within four months from today in accordance with law. The petition stands disposed of accordingly with no order as to costs.
Rule disposed of in the above terms.
The parties are directed to appear before the Executing Court on 3/10/2011 at 2.30 p.m..