Allahabad High Court
Sangeeta vs Smt. Shailja Gupta And 9 Others on 16 December, 2022
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 11655 of 2022
Petitioner :- Sangeeta
Respondent :- Smt. Shailja Gupta And 9 Others
Counsel for Petitioner :- Himanshu Singh,Sr. Advocate
Hon'ble Ajit Kumar,J.
Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Himanshu Singh,learned counsel for the petitioner.
By means of this petition filed under Article 226 of the Constitution, petitioner has prayed for quashing of the order dated 15.11.2022, whereby, the executing court proceeded to execute the ex parte judgment and decree dated 13.10.2022 on the ground that mere filing of an application under Order IX Rule 13 of the Code of Criminal Procedure, 1908 would not amount to stay over and above the execution proceedings.
Learned counsel for the petitioner submits that an ex parte judgment and decree has come to be passed on the basis of substituted service by publication and no soon did petitioner come to know of the ex parte judgment and decree dated 13.10.2022, he filed a restoration application for recall of the ex parte judgment and decree under Order IX Rule 13 Code of Criminal Procedure, 1908 on 10.11.2022 and at the same time complied with the mandatory requirement of deposit of requisite amount as per proviso contained under Section 17(1) of Provincial Small Cause Courts Act, 1887. He submits that he has also moved an application for stay of ex parte judgment and decree but upon the stay application so filed, the court has fixed 21.12.2022 for hearing on maintainability, whereas, in the meanwhile the executing court has proceeded to pass order dated 15.11.2022.
Learned counsel for the petitioner submits that against the order fixing a date instead of granting interim stay, petitioner preferred a revision petition which has also come to be dismissed by the District Judge, Kanpur Nagar only on the ground that the revision was not maintainable against interlocutory order as admittedly the date had been fixed on the interim stay application filed by the petitioner. However, revisional court directed the court below to decide the pending application of the petitioner after hearing both the parties.
Having heard learned counsel for the petitioner and having perused the record, I am of the considered view that once there is an application under Order IX Rule 13 Code of Criminal Procedure, 1908 has been preferred and a stay application has also been filed complying with the proviso to Section 17(1) of Provincial Small Cause Court Act, 1887, looking to the proximity of dates between the passing of ex parte judgment and decree and filing of the restoration application being 13.10.2022 and 10.11.2022 respectively, the court ought to have taken pragmatic view while passing order for execution of such an ex parte judgment.
In such above view of the matter, this writ petition stands disposed of with a direction to the trial court to dispose of the pending stay application on the next date fixed or in case of any unavoidable circumstances if the matter is not heard on that day, it be heard within one or two weeks' time thereafter. The Court will also proceed to decide the matter of Order IX Rule 13 Code of Criminal Procedure, 1908 application considering the facts and circumstances that the ex parte judgment and decree is sought to be recalled within a period of 30 days of the passing of such decree and shall proceed to decide the same strictly in accordance with law after hearing the parties concerned.
In the meanwhile until disposal of the stay application, further execution proceedings in Execution Case No. 222 of 2022 in respect of the ex parte judgment and decree dated 13.10.2022 shall remain in abeyance.
Order Date :- 16.12.2022
IrfanUddin
