Prem Raj v. Nirmal Singh

agreement to sell. Defendant-respondent was allegedly served through his wife, but nobody appeared for him in the trial Court. He was proceeded ex parte. Learned Trial Court vide judgment and decree dated 03.11.2007 Annexures P-1 and P-2 decreed the plaintiff's suit. The plaintiff filed execution petition for execution of the said decree. Notice of the execution petition was served on respondent-judgment debtor on 14.05.2008 for 24.05.2008. C.R. No.6185 of 2009 -2- Accordingly, on 24.05.2008, Mr. T. S. Bajwa, Advocate put in appearance in the Executing Court on behalf of respondent-judgment debtor. Case was adjourned to 19.07.2008 for filing objection. However, on 19.07.2008, none appeared for Judgment debtor and accordingly the judgment debtor-respondent was proceeded ex parte. Draft sale deed was ordered to be filed on or before

23.08.2008. On 23.08.2008 draft sale deed was filed. Ultimately draft sale deed was approved by the Executing Court and Commissioner was appointed to execute the sale deed in terms of the decree. Pursuant thereto, sale deed dated 19.09.2008 Annexure P-3 was executed in favour of petitioner-decree-holder. Warrant of possession of the suit property was ordered to be issued. Petitioner- decree-holder applied for police help for execution of the warrant of possession. In the meanwhile, respondent-judgment debtor moved application Annexure P-4 on 15.10.2008 under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (in short, CPC) for setting aside ex parte judgment and decree dated 03.11.2007. In the said application as well as in the execution petition, respondent moved separate applications under Section 151 CPC for stay of execution proceedings. Thereupon similar orders have been passed on 03.09.2009 in the execution petition as well as in application under Order 9 Rule 13 CPC. Impugned order Annexure P-5 is reproduced hereunder:- “Present: Counsel for the parties. Heard on application u/s 151 CPC. Proceedings of execution cannot be stayed C.R. No.6185 of 2009 -3- but till the disposal of the application under Order 9 Rule 13 CPC warrants of possession of the property will not be issued. In view of above observation, application under Section 151 CPC stands disposed of. Now to come upon 26.09.2009 for further proceedings.” Feeling aggrieved, decree-holder has filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that the impugned order is self-contradictory as the executing Court on the one hand observed that proceedings of execution cannot be stayed, but at the same time, observed and ordered on the other hand that till disposal of application under Order 9 Rule 13 CPC, warrants of possession of the property would not be issued. It was also contended that petitioner has already paid/deposited the entire sale consideration and has also got the sale deed executed, but he is being deprived of the fruits of the decree. On the other hand, learned counsel for the respondent contended that defendant-respondent was not properly served in the suit and he has mentioned in his application Annexure P-4 under Order 9 Rule 13 CPC that report of process server is false. I have carefully considered the rival contentions. Impugned order Annexure P-5 is self-contradictory. The executing Court observed that proceedings of the execution cannot be stayed, but in spite thereof, the executing Court stayed the proceedings of C.R. No.6185 of 2009 -4- the execution by directing that warrant of possession of the property will not be issued till disposal of the application under Order 9 Rule 13 CPC. Such contradictory order cannot be allowed, to stand being completely erroneous, illegal and perverse, depicting complete non- application of mind by the executing Court. In addition to the aforesaid, the petitioner decree-holder has paid/deposited entire sale consideration and has also got the sale deed executed by incurring expenses. However, he is being deprived of the fruits of the decree without any sufficient ground. Even the executing Court has found that execution proceedings cannot be stayed, but nevertheless warrant of possession is not being issued by the executing Court till disposal of application moved by respondent under Order 9 Rule 13 CPC. It has to be noticed with significance that according to record of the suit, defendant-respondent was served in the suit through his wife, who received the summons on his behalf. However, in application Annexure P-4 under Order 9 Rule 13 CPC, defendant- respondent has not even specifically pleaded that summons was never received in the suit by his wife. There is another significant circumstance going against the respondent. He was admittedly served in the execution petition on 14.05.2008 for 24.05.2008 and even put in appearance through counsel in the execution proceedings on 24.05.2008. However, application Annexure P-4 under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree was moved by respondent on

15.10.2008 i.e six months after service of notice in the execution C.R. No.6185 of 2009 -5- petition. The said application is thus prima facie barred by limitation. The aforesaid delay is sought to be explained by alleging that the counsel engaged in the execution petition by the respondent did not tell him about nature and status of the case. This vague and general plea cannot be accepted to explain such long delay. Such lame excuses are taken almost in every other case. Every lapse is put on the shoulder of the counsel for which no action is ever taken by the litigant against the counsel and such plea is taken only to get some benefit from the Court. When the respondent was served in the execution petition and he even engaged a counsel, it does not lie in the mouth of the respondent to contend that he came to know of the ex parte judgment and decree only on 29.09.2008. This date has been chosen only to bring the application Annexure P-4 within period limitation. For the reasons aforesaid, I conclude that petitioner- decree-holder is being deprived of the fruits of the decree without any sufficient ground. There is no reason to stay the execution proceedings. There is no ground for not issuing warrant of possession of the suit property till disposal of application under Order 9 Rule 13 CPC moved by the respondent. The impugned order is completely illegal, perverse and unsustainable. Learned Executing Court has committed jurisdictional error in passing the impugned order. As a necessary upshot of the discussion aforesaid, the instant revision petition is allowed and the impugned order dated

03.09.2009 Annexure P-5 passed by the Executing Court is set aside C.R. No.6185 of 2009 -6- and the executing Court is directed to proceed with the execution proceedings in accordance with law and to issue warrant of possession of the disputed property in favour of decree-holder- petitioner and to execute the decree in accordance with law as expeditiously as possible. However, nothing observed hereinabove shall have any bearing on the merits of the application moved by respondent under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree. Records of the Courts below be sent back at once.

24.09.2010. A. Kaundal ( L. N. MITTAL ) JUDGE