Writ petitioner seeks quashing of an order dropping family court execution proceedings due to late filing of requisites. Supreme Court directs lower court to admit recall petition.
Directed the learned Judge, Family Court, Puri to receive the petition for recall under Section 151 CPC if filed within two weeks and dispose of it in accordance with law.
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W.P.(C) NO. 23363 OF 2015
05. 01.11.2016 In this application under Article-277 of the Constitut
ion, the petitioner (decree holder) seeks quashment of an order dated 07.12.2015 under Annexur
e -3 passed by the learned Judge, Family Court, Puri with further direction for accepting the
petition for recall of the said order passed in Execution Case No. 06 of 2012.
2. Heard Mr. M. Mohanty, learned counsel for the petitioner. None appears on beha
lf of the opposite party despite due service of notice.
Perused the order-sheets of the Judge, Family Court in Execution Case No. 06 o
f 2012.
3. The court below vide later order dated 04.12.2015 had directed the petitioner (decree
holder) to file (i) list of property to be attached; (ii) the warrant of attachment; and (iii)
process and daily fee, within three days fixing the case to 07.12.2015. On that day, learned
counsel for the parties filed hazira and the court having waited till 1.20 pm for receiving th
e requisites as per the earlier dated 04.12.2015 from the petitioner (decree holder) when did
not find the response has passed an order of dropping execution proceeding.
4. Learned counsel for the petitioner submits that on that very day after strenuous exerc
ise when the petitioner (decree holder) went with the requisites etc in the second half of the
day to file the same, the court refused to accept the same in view of the order already passe
d by then dropping the proceeding. It is his further contention that thereafter on that very d
ay, the petitioner swearing affidavit went with a petition under section 151 of the Code of Ci
vil Procedure read with section 181 of the Family Courts Act praying to recall order dated 07.
12.2015 and that was also not accepted and therefore now having a valid decree, the petitioner
(decree holder) is running without being able to get the fruit of the same, when the opposite
party (judgment debtor) is not at all cooperating in the proceeding. It is further submitted
that at present, in so far as the plight of the petitioner the less said the better. It is als
o his submission that when the date was fixed only for submission of the requisites etc., the
court in the facts and circumstances ought to have waited at least till raising before passing
an order as above and that also according to him is not in accordance with law.
Considering the submissions and in the facts and circumstances of this case as aforesaid
, now at this stage, the writ application is disposed of directing the learned Judge, Family C
ourt, Puri to receive the petition under section 151 of the Code of Civil Procedure, if would
be so filed within a period of two weeks hence and dispose of the same in accordance with law,
keeping in view the facts and circumstances of the case and accordingly decide to proceed fur
ther in the matter as per law.
The writ application is accordingly disposed of.
Narayan.
// 2 //
3 issues framed by the court
Whether the learned Judge, Family Court erred in dropping execution proceedings after the decree holder filed the required requisites.
Whether the writ court should direct the lower court to admit a petition for recall of the ex-parte dropping order.
Whether the lower court was justified in refusing to accept documents filed after the passing of the dropping order but before the day concluded.
2 provisions across 2 enactments
Petitioner (decree holder)
Opposite party / Judgment debtor
Narayan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court