Target Investment Thru' Partner vs Col. Niranjan Singh & 2 Others
2015 Latest Caselaw 962 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 58
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2817 of 2015
 

 
Petitioner :- Target Investment Thru' Partner
 
Respondent :- Col. Niranjan Singh & 2 Others
 
Counsel for Petitioner :- Siddharth
 

 
Hon'ble Manoj Kumar Gupta,J.

The applicant had suffered an exparte money decree. It thereafter applied for exparte decree being set aside, alongwith an application for condonation of delay in filing  the restoration application. The delay condonation application came to be rejected by the trial court by an order dated 17.2.2011. Revision filed against the said order has also been rejected.

Learned counsel for the applicant submitted that the  suit was transferred from the court of Additional Civil Judge, Court No.2 to the court of Additional Civil Judge Court no.6, by order of the District Judge dated 24.9.2005. The same is evident from the order recorded in the order sheet dated 26.9.2005. However, it is urged that the applicant who was defendant in the suit was not given any information about the transfer of the suit to the other court  as required by General Rules (Civil) 89-A. It is further submitted that  the courts below have proceeded  on an erroneous assumption of the fact that the court remained vacant and after the new Presiding Officer joined, the proceedings were resumed before the same court. It is further contended that an endorsement made by the counsel for the defendant opposing the adjournment application is not sufficient to impute knowledge of transfer of the suit to the other court. It is urged that the courts below have failed to exercise the jurisdiction vested in them by refusing to recall the  order decreeing the suit exparte and it had occasioned a failure of justice.

Prima facie, the contentions appear to have force  and the matter requires consideration.

Issue notice to the respondents.

Steps to be taken within a week by registered post.

All the respondents may file their counter affidavit within three weeks.

List in the week commencing 10 August, 2015.

Regard being had to the fact that the decree is a money decree, it is hereby provided that in case the applicant deposits the entire principal amount as decreed by the trial court i.e., Rs.69421.64 ps. before the executing  court, within one month from today, then the execution of the exparte decree shall remain stayed till the next date of listing. It shall be open to the executing court to release the amount, if any deposited in pursuance of this order, after obtaining adequate security from the decree holders. The security shall be  other than cash or bank guarantee.

(Manoj Kumar Gupta, J.)

Order Date :- 1.7.2015

skv