SUNITA KHANNA Vs. B L GUPTA

JUDGEMENT

(1.) Against an ex-parte decree passed against the petitioner, an application under Order 9, Rule 13 Civil Procedure code was filed for setting aside the same. During the pendency of that application, the petitioner filed another application under Order 21, Rule 26 for stay of the execution of the ex-parte decree for setting aside of which the petitioner had filed an application under Order 9, Rule 13, Civil Procedure code. By the impugned order dated 29/08/1997, the learned Trial Court refused to stay the execution of the ex-parte decree and dismissed the application of the petitioner under Order 21, Rule 26, Civil Procedure code. Being aggrieved by that order, the present revision petition was filed by the petitioner.

(2.) This petition was admitted on 17/05/2000 and the matter was listed today for hearing of the main revision petition. No one is present on behalf of the respondent and I have, therefore, proceeded to dispose of this petition in the absence of the respondent.

(3.) It is not in dispute that the petitioner's application under Order 9, Rule 13, Civil Procedure code for setting aside ex-parte decree is pending and issues have already been framed in that application. I am informed that this application is now listed in the month of February itself for recording of evidence of the parties. In case the execution of the decree is not stayed, in my view, the whole purpose of filing an application under Order 9, Rule 13, Civil Procedure code would be defeated. Moreover, in terms of the directions of this Court, the petitioner has already deposited a sum of Rs. 20.000.00 in the Trial Court. Since a sum of Rs. 20,000.00 has already been deposited in Court, I am of the view that till such time, the application of the petitioner under Order 9, Rule 13, Civil Procedure code is decided, the execution of the ex-parte decree is required to be stayed. As it was the case of the petitioner that he had not been served with the summons in the suit, the learned Trial Court has acted with material irregularity in not staying the execution of the decree till the decision of the application under Order 9, Rule 13, Civil Procedure code. I accordingly set aside the order dated 29/08/1997 passed by the Trial Court and stay the execution of the ex-parte decree till the decision of the application under Order 9, Rule 13, Civil Procedure code. With these observations, this petition stands disposed of. Petition disposed of.