The High Court dismissed a petition under Article 227 challenging the dismissal of a recall application. The court found the petition devoid of merits as the petitioner failed to explain his non-appearance in execution proceedings despite notice.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 9818 of 2018
Petitioner :- Om Swaroop Respondent :- Anil Kumar Sharma And 3 Others Counsel for Petitioner :- Ayub Khan
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner.
The present petition is directed against the order passed in a proceeding under Order 9 Rule 13 CPC, whereby the trial court has refused to recall the order dated 13.11.1992, whereby the recall application under Order 9 Rule 13 CPC (Misc. Case No. 77 of 1991) filed by the petitioner, has been dismissed for nonprosecution.
The recall application dated 26.3.2014 under Section 151 CPC has been filed to recall the order dated 13.11.1992 with the assertion that the counsel for the applicant did not inform him about the correct position of the said proceeding. The petitioner/recall applicant was not residing in Bulandshahr and, therefore, he could not contact his counsel.
This ground taken by the recall applicant is sought to be pressed before this Court to assert that sufficient explanation has been offered by the recall applicant for seeking recall of the order dated 13.11.1992 and both the courts below have erred in rejecting the explanation.
Dealing with this submission of learned counsel for the petitioner, relevant is to note that the ex-parte decree dated 30.7.1991 passed in Original Suit No. 788 of 1989 against the petitioner was executed in Execution Case No. 5 of 2001 wherein notice was served upon the recall applicant and since he did not appear before the executing court to file any objection, a sale deed had been executed on 10.1.2013. This fact is reflected from the records of the present petition i.e. from the objection of the plaintiff/decree holder dated 3.5.2014. No explanation could be offered by the petitioner herein as to why he did not appear in the execution proceeding despite service of notice.
No case is, thus, made out to recall the dismissal order dated 13.11.1992 so as to revive the recall application under Order 9 Rule 13 i.e. Misc. Case No. 77 of 1991.
For the aforesaid, the present petition is found devoid of merits and hence dismissed .
Order Date :- 26.2.2019 Brijesh
3 issues framed by the court
Whether the petition can be maintained when the petitioner failed to offer any explanation for non-appearance in execution proceedings despite service of notice.
Whether a sufficient explanation has been provided to recall the order dismissing the recall application under Order 9 Rule 13 CPC.
Whether the trial court correctly refused to recall the order dated 13.11.1992.
Om Swaroop
Anil Kumar Sharma
3 Others
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
