Chattisgarh High Court
Gulab vs Panna Bai on 20 July, 2021
Page 1 of 4
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(227) No. 132 of 2019
1. Gulab, S/o. Late Arjun, aged about 39 years,
2. Prakash, S/o. Late Arjun, aged about 37 years,
3. Aasha Bai, D/o. Late Arjun, aged about 39 years,
4. Manglin Bai, Wd/o. Late Arjun, aged about 69 years,
All are R/o. Village Beltukri (Kasoudi), Through- Jairamnagar,
Tahsil - Masturi, Civil and Revenue District- Janjgir-Champa,
Chhattisgarh.
---- Petitioners
Versus
Panna Bai, Wd/o. Late Ramesh Yadav, aged about 59 years, R/o.
Chandani Chawk, Purena, Bhilai, Civil and Revenue District- Durg,
Chhattisgarh.
---- Respondent
For Petitioners : Mr. Parasmani Shrivas, Advocate
For Respondent : Mr. Ratnesh Kumar Agrawal, Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order On Board
20/07/2021
1. The present petition under Article 227 of the Constitution of India
has been brought being aggrieved by the impugned order dated
23.01.2017, passed in M.J.C. No. 26 of 2017, by the 1 st Additional
District Judge, Bilaspur, District - Bilaspur, dismissing the
application under Order 9 Rule 9 of C.P.C. filed by the petitioners
praying for restoration of the application under Order 9 Rule 13 of
C.P.C.
2. Respondent had filed a civil suit No.3-B/2009, which was decreed
in her favour on 16.11.2009. Late defendant Arjun Yadav had filed
an application for setting-aside the ex-parte judgment and decree
against him that application was dismissed in non-prosecution on
20.08.2014. The petitioners, who are the legal representatives of
the defendant Arjun Yadav in Civil Suit No.3-B/2009, filed an
application under Order 9 Rule 9 of C.P.C. in the year 2016-17
praying for restoration of application under Order 9 Rule 13 of
C.P.C. The learned Court below has held in the impugned order
that the present petitioners have not taken any interest in the
prosecution of the proceeding under Order 9 Rule 13 of C.P.C.,
therefore, the application for restoration of that proceeding M.J.C.
No.22/2013 was dismissed.
3. It is submitted by the learned counsel for the petitioners that their
father Arjun Yadav expired on 13.01.2014, therefore, he was not in
a position to give appearance, before the Court, hence, the
dismissal of the MJC No.22/2013 is erroneous and illegal.
Therefore, the application under Order 9 Rule 9 of C.P.C. was fit to
be allowed, which may be allowed in this petition and relief be
granted to the petitioners.
4. Counsel for the respondent opposes the petition and the
submissions made in this respect. It is submitted that the learned
Court below has not committed any error in passing the impugned
order. The application was filed by the petitioners after a long
delay without any proper explanation. Further the petitioners in this
case had earlier filed a Miscellaneous Appeal No.32 of 2017
before this Court, which was disposed off on 09.03.2017. The
petitioners had challenged the execution proceeding in that case,
which shows that the petitioners had knowledge about the decree
against their father Arjun Yadav. The application under Order 9
Rule 9 of C.P.C. has been filed for the purpose of taking benefit in
the execution proceeding, hence, it was not fit to be allowed. This
petition may also be dismissed.
5. I have heard the learned counsel for both the parties and perused
the documents placed on record.
6. Considered on the submissions. On perusal of the impugned order
and other documents present, it is found that deceased defendant
had been callous in challenging the ex-pate judgment and decree
against him, which was passed on 16.11.2009 by filing application
under Order 9 Rule 13 in the year 2013, which was then again
dismissed on 20.08.2014 due to non-appearance of the applicant/
defendant i.e. Arjun Yadav. As it is informed that Arjun Yadav has
expired on 13.01.2014 in that case, the proceeding under Order 9
Rule 13 had already abated and because of the fact of abatment,
the order of dismissal on 20.08.2014 can be regarded as final
closure of that proceeding.
7. On perusal of the order of this Court in Miscellaneous Appeal No.
32/2017 dated 09.03.2017, it is found that the petitioners had been
challenging the execution proceeding against them, in which the
petitioners were granted liberty to raise all the issues before the
Executing Court, which had been raised in the miscellaneous
appeal, therefore, I am of this view that the application filed under
Order 9 Rule 9 of C.P.C. was already delayed and the reasons
mentioned for dismissal in the impugned order are proper,
therefore, I do not find any need for interference in the impugned
order.
8. In view of the forgoing discussion made here-in-above, the present
petition is found to be without any substance, which is dismissed
at motion stage itself.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Balram
