Disposed

Jagdish Son of Late Shri Ramdayal v. Meharchand Son of Jayram

Rajasthan HC3 Jul 2024CW/6612/2024

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a stay on execution of an ex-parte decree. The Court directed the Appellate Court to decide the pending appeal against the dismissal of a default application on merits within four months without interfering with the stay order.

What did the court decide?

Writ petition disposed of directing the Appellate Court to decide the pending appeal on merits within four months without interfering in the stay order.

Jagdish Son of Late Shri Ramdayal Vs Meharchand… — Execution and Attachment | Rajasthan HC (2024)

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[2024:RJ-JP:27550]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 6612/2024

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Jagdish Son Of Late Shri Ramdayal, Aged About 81 Years, Resident Of House No. 535, Sector 3, Rewari, District Rewari (Haryana)

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----Petitioner

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Versus

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Meharchand Son Of Jayram, Resident Of Milakpur Gurjar, Tehsil Tijara, District Alwar (Raj.)

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----Respondent

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For Petitioner(s) : Mr. R.K. Mathur Sr. Adv. assisted by Mr. Lucky Sharma For Respondent(s) : Mr. Rahul Tiwari

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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03/07/2024

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Petitioner is plaintiff-decree-holder who has filed this writ petition invoking jurisdiction under Article 227 of the Constitution of India to challenge the order dated 26.02.2024 passed by the Additional District and Session Judge No.2, Tijara, Alwar in civil misc. appeal No.46/07/2022 titled as Mehar Chand Vs. Jagdish and Ors. staying the execution of ex-parte decree dated 05.12.2017 during course of hearing of appeal.

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Learned Senior Counsel appearing on behalf of petitioner, vehemently argued that the Appellate Court has committed jurisdictional error in not taking into consideration the conduct of the respondent-judgment debtor and has committed illegality in staying the execution of decree. He pointed out that the petitioner filed civil suit for mandatory and permanent injunction seeking

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demolition of illegal construction of a wall and projection raised by the defendant in the land of plaintiff wherein defendants have filed written-statement but during suit proceedings they remained absent and suit proceeded ex-parte. Thereafter, suit was decreed on merits vide judgment and decree dated 05.12.2017. Thereafter, after a delay of two years, during course of execution, defendants preferred application under Order 9 Rule 13 CPC which has been dismissed by the trial Court on the ground of delay vide order dated 25.05.2022 whereagainst one of the defendantjudgment debtor (respondent herein) has preferred the civil miscellaneous appeal. In this misc. appeal the order impugned has been passed by the appellate Court.

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In addition to above, it has also been pointed out by the learned senior counsel that the defendant-judgment debtor also submitted objections against the decree dated 05.12.2017 before the Executing Court under Section 47 CPC, which too has been rejected on merits vide order dated 01.08.2023. 4. Per contra, learned counsel appearing on behalf of respondent-defendant-judgment debtor states and he undertakes to argue the civil miscellaneous appeal itself on merits before the appellate Court, on the next date of hearing or which ever date is fixed by the Appellate Court and till then the stay of execution a decree, passed ex-parte, as granted by the Appellate Court vide impugned order may not be interfered.

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Having heard counsel for both parties and considering the afore-referred facts and circumstances, this Court is of the opinion that arguments made by learned Senior Counsel on behalf of petitioner-plaintiff highlighting the conduct and malafides on the

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part of defendant-judgment debtor, are to be considered by the Appellate Court taking note of the conduct of defendant-judgment debtor while deciding the appeal on merits. This Court finds that at this stage, where the appeal filed by respondent-judgment debtor against dismissal of his application under Order 9 Rule 13 CPC is pending, it would be just and proper that the Appellate Court shall hear and decide the appeal itself on merits expeditiously for which learned counsels for both parties are agreeable.

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In view of above, without interfering with impugned order, the writ petition is disposed of with the direction that respondent judgment debtor shall argue the appeal on merits on the next date or any other date fixed by the Appellate Court. The counsel for petitioner has also agreed to make his submissions before the Appellate Court on the next date fixed or any other day so fixed. However, in case it is not possible to be heard the appeal on next date, it is expected that the Appellate Court shall hear and decide the appeal, preferably within a period of four months from the next date of hearing and after receipt of the certified copy of this order.

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Office is directed to send the certified copy of this order to the trial Court forthwith.

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Accordingly, the present writ petition stands disposed of.

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Stay application and any other pending application(s), if any, stand disposed of.

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(SUDESH BANSAL),J

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SOURAV /41

Jagdish Son of Late Shri Ramdayal v. Meharchand Son of Jayram

Case brief

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Jagdish Son of Late Shri Ramdayal v. Meharchand Son of Jayram

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