APPU Vs. P SURENDRA SWAMI

JUDGEMENT

(1.) The questions raised for a decision in this proceeding are whether, as in the case of an order as provided under R. 6 (1)(a) of O. IX of the Code of Civil Procedure (for short, "the Code") that the suit be heard ex parte, the executing court is required to pass an order that the application be heard ex parte on the judgment debtor not appearing in spite of service of notice and whether the period of limitation prescribed under Sub-r.(3) of R. 106 of O.XXI of the Code is to be reckoned from the date on which judgment debtor is declared absent or, the executing court passes order on any application in the execution proceeding in the absence of the judgment debtor

(2.) A resume of the facts necessary for the decision of the questions are:

(3.) Learned counsel for petitioner contends that unlike R.6 (1) (a) of O. IX of the Code where the court is empowered to pass an order that the suit be heard exparte when it is satisfied that summons has been duly served on the defendant but he does not appear, Sub-r.(3) of R. 105 of O. XXI does not empower the executing court to pass an order that the application be heard exparte. Instead, the said provision only requires the court to hear the application (in execution) exparte and pass such orders as it thinks fit if it is satisfied that in spite of notice the opposite party does not appear. According to the learned counsel, this is evident from Sub-r.(3) of R.105 of O.XXI and R.6 (1) (a) of O. IX of the Code. It is the further contention of learned counsel that therefore, the period of limitation prescribed under Sub-r.(3) of R. 106 of O.XXI of the Code is not with respect to the order setting the judgment debtor ex parte in the execution proceeding but, with respect to the order passed in the execution proceeding in the absence of the judgment debtor. Learned counsel has referred me to the Object and Reasons for amendment of R. 6 of O. IX of the Code. It is argued that if the executing court could not have passed order on 5.2.2010 declaring petitioner/judgment debtor exparte, it must be taken that Ext. P15, order was passed after petitioner entered appearance in the executing court and preferred Ext. P11, objection. In that situation, the executing court was bound to consider Ext. P11, objection preferred by petitioner and pass order on merit. Executing court could not pass Ext. P15, order disregarding the presence of petitioner in the executing court and Ext. P11, objection. It is also argued that at any rate the executing court was not correct in rejecting the request of petitioner to set aside order dated 5.2.2010 since as aforesaid, no question of passing an order declaring the judgment debtor exparte in the execution proceeding arose.