VEENA TRIPATHI Vs. HARDAYAL

JUDGEMENT

(1.) The order impugned is dated 03.05.2012; the executing court had dismissed the objections filed by the judgment debtor under Section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code'); these objections are dated 01.05.2012.

(2.) Record shows that a suit for recovery had been filed by the plaintiff-Hardyal against the petitioner/defendant-Dr. Veena Tripathi. This was a suit under Section 37 of the Code ; plaintiff claimed to be the owner of property bearing No. WZ-904, Nagal Raya, Main Pankha Road, New Delhi -46; the basement, second and third floor were stated to be in possession of the plaintiff; ground and first floor had been let out to the defendant in 2001 @ Rs. 10,000/- for running a Nursing Home where it was run under the name of Shubham. The defendant was making irregular payments; on certain occasions cheques issued by the defendant were bounced because of insufficient find. The present suit has been filed on the basis of five cheques details of which find mention in para 4 of the plaint. They are cheques dated 12.08.2001, 18.09.2002, 13.05.2003, 25.08.2001 and 18.09.2002; all in the sum of Rs. 10,000/- except the last cheque which is in the sum of Rs.16,500/-; principal figure of these cheques was Rs. 56,500/- and alongwith interest the said amount was Rs. 59,380/-. After service of summons, the memo of appearance was not filed by the defendant; she having failed to put in appearance, the ex parte judgment and decree had fallen in favour of the plaintiff on 20.12.2004; the suit was decreed in the sum of Rs. 56,350/- alongwith interest @ 8 % per annum from the date of the filing of suit till realization.

(3.) Thereafter an application under Order 37 Rule 4 of the Code had been filed by the defendant; that application is not on record. Learned counsel for the petitioner has fairly conceded that in the application under Order 37 Rule 4 of the Code, he had pleaded 'special circumstances'; the 'special circumstances' being that the defendant had not been served with the summons of the suit and thus ex parte judgment and decree dated 20.12.2004 is liable to be set aside; admittedly, the question of fraud had never been raised by the defendant; it was never his case that the decree has been obtained by fraud for one reason or the other.