Ousting Parties On Technical Grounds While Executing Ex-Parte Decree When Petition For Setting Aside That Decree is Pending Causes Injustice: Karnataka HC

A bench of Justice Vijaykumar A. Patil further observed, “The respondent has specifically contended in the miscellaneous petition that suit summons was never served on the defendants and the address shown in the plaint cause title is incorrect. When things stood thus, ultimately the parties to the proceedings are required to be provided with sufficient opportunity to put forth their case in the miscellaneous proceedings. It would be appropriate to stay the judgment and decree passed during the pendency of the miscellaneous petition. The contentions urged by the learned counsel for the petitioner that the respondents have approached the Court belatedly and on flimsy grounds, the said contentions are required to be considered by the Court in the miscellaneous proceedings”.

Advocate H. Suresh appeared for the petitioner, Advocate Pradeep H.S. appeared for the respondent.

The present writ petition was filed seeking a prayer to quash the order dated October 17, 2022 passed by the Addl. City Civil and Sessions Judge, Bangalore whereby the application filed by the respondent under Section 151 read with Section 141 of the Code of Civil Procedure, 1908 was allowed by staying the execution and operation of the decree passed till the disposal of the miscellaneous application.

The petitioner had filed an application seeking directions against the respondents for recovery of money. As per their contentions, though the notice was duly served on the respondents, the respondents had failed to appear in the proceedings. Hence, the Civil Court passed ex-parte judgment and decree in favour of the petitioner and directed the respondents to pay Rs.17,47,606/- with interest at the rate of 18% p.a. from the date of Cheque till realization. Thereafter, petitioner initiated execution proceedings wherein the Execution Court has allowed the application for attachment of immovable property.

Furthermore argued that the impugned order passed by the Trial Court is erroneous and contrary to the material available on record. The Trial Court has failed to appreciate the fact that the present application is filed after a lapse of 1245 days from the date of judgment and decree. It was further submitted that the respondents were well aware about the suit proceedings and evaded the service of notices.

However, the respondents contended in the written statement that they had not been served with notice in O.S.No.1681/2017 and the petitioner herein had given incorrect address in the plaint. Therefore, alleged that the Trial Court in the suit had incorrectly held that the service of notice is sufficient, as the said notice was never served on the respondents.

Further contended that the miscellaneous petition filed by the respondents seeking to recall the judgment and decree is pending consideration before the Trial Court and that during the pendency of miscellaneous petition, if the execution proceedings is allowed to be continued by executing the judgment and decree, their petition filed under Order IX Rule 13 of the CPC would render infructuous and it would cause great injustice to the respondents. Thus sought dismissal of the petition.

“On close scrutiny of the averments made in the miscellaneous petition and the application, it is evident that the miscellaneous petition filed for setting aside of the judgment and decree is pending and if the Execution Court is allowed to execute the judgment and decree dated February 25, 2019, the miscellaneous petition filed by the respondents would render infructuous”, the bench thus further noted in the matter.

Accordingly, while refusing to interfere with the impugned order the bench disposed of the petition.

Cause Title: Rekha G. Pathak v. Siddarth Minerals [Neutral Citation: 2023:KHC:34535]

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