Allowed

Thakur Prasad Kalantri v. Radhika

Rajasthan HC8 Jul 2024CW/8103/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the order declining stay of execution proceedings. The Court held that the Trial Court ought to have decided the application under Order 9 Rule 13 CPC before proceeding with execution. The impugned order was set aside, execution was stayed, and the Trial Court was directed to decide the application within three months.

What did the court decide?

Impugned order dated 06.5.2024 set aside. Execution proceedings stayed till decision of application under Order 9 Rule 13 CPC.

Thakur Prasad Kalantri Vs Radhika — Matrimonial and Divorce | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 8103/2024

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Thakur Prasad Kalantri S/o Shankar Lal, Aged About 33 Years, Pratapnagar, Chittorgarh, Tehsil And District Chittorgarh (Raj.)

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----Petitioner

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Versus

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Radhika D/o Jagdish Baldi W/o Thakur Prasad Kalantri, By Caste Mahajan, R/o Lakhotiya Gali, Chowpati Bazaar, Nathdwara, District Rajsamand (Raj.)

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----Respondent

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For Petitioner(s) : Mr. Mukesh Vyas For Respondent(s) : Mr. Mahaveer Singh Rathore

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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08/07/2024

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The present writ petition has been preferred against the order dated 06.5.2024 (Annexure/10) whereby the request to stay the execution proceedings as preferred by the applicant therein, has been declined by the learned Court and the applicant has been directed to deposit the complete alimony amount on the next date fixed, i.e. 20.5.2024.

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Learned counsel for the petitioner submits that order to proceed ex parte against the petitioner-husband was passed on 02.6.2023 and on the very next date fixed, i.e. 14.6.2003, the ex parte decree was passed.

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Learned counsel submits that instantly on 28.7.2023, an application under Order 9 Rule 13, CPC for setting aside the ex parte decree dated 14.6.2023 was preferred by the petitioner and alongwith the said application, a request was made for staying the

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(2 of 3) [CW-8103/2024]

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execution proceedings till his application under Order 9 Rule 13, CPC is decided. However, the learned Trial Court, without deciding the said application, proceeded erroneously and rejected the request as made by the defendant-husband.

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Learned counsel further submits that if the order impugned is not stayed at this stage, no purpose would be served even if the application under Order 9 Rule 13, CPC is ultimately allowed in favour of the petitioner.

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Per contra, learned counsel for the respondent submits that an ex-parte decree was rightly passed by the learned Court as none appeared on behalf of the defendant husband on 02.6.2023.

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Even otherwise, the ex-parte decree was passed in terms of the conditions of the mutual agreement as entered into between the parties way back in the year 2020.

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Heard learned counsel for the parties and perused the record. 7. It is clear on record that the order to proceed ex-parte against the defendant was passed on 02.06.2023 and on the very next date fixed, the ex parte decree dated 14.6.2023 was passed. The application under Order 9 Rule 13, CPC was preferred on 28.7.2023 within a period of two months, which could not have been said to be delayed.

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In the specific opinion of this Court, in the above circumstances, the learned Court ought to have first decided the application under Order 9 Rule 13, CPC and then only ought to have proceeded to pass any order for execution of the ex-parte decree. The approach of the learned Trial Court in proceeding to get the ex parte decree executed without deciding the application

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[CW-8103/2024]

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(3 of 3)

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under Order 9 Rule 13,CPC cannot be said to be in consonance with the basic principles of law as well as of natural justice. By all means, the execution proceedings ought to have been stayed by the learned Court till the disposal of the application under Order 9 Rule 13, CPC.

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In view of the above facts and analysis, the present writ petition is allowed. The order impugned dated 06.5.2024 is hereby set aside. It is hereby directed that the learned Trial Court shall first proceed to decide the application under Order 9 Rule 13, CPC as preferred by the petitioner defendant, preferably within a period of three months from now.

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It is made clear that the execution proceedings shall remain stayed till the decision of the application under Order 9 Rule 13, CPC as preferred by the petitioner husband.

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Stay petition and pending applications, if any, also stand disposed of.

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(REKHA BORANA),J

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ns. 314-/-

Thakur Prasad Kalantri v. Radhika

Case brief

What is this about?

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Thakur Prasad Kalantri v. Radhika

Case brief

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