BABU Vs. SAJEEVAN

JUDGEMENT

(1.) Exts. P2 and P3 orders passed by the Sub Court in an execution proceeding in E.P. No. 264/2008 in O.S. No. 470/2000 are challenged by the decree holder. In execution of a decree for money, immovable property of the judgment debtor was attached and brought to sale. After the sale also became absolute and followed by issue of sale certificate and delivery of the property Judgment debtor moved two applications before the execution court, one for setting aside the order declaring him ex parte in the execution proceedings and the other for setting aside the sale. Latter of the two applications was filed under O. XXI R. 89 of the Code of Civil Procedure, hereinafter referred to as the Code, Learned Sub Judge overruling the objections raised by decree holder has allowed both applications vide Exts. P2 and P3 orders respectively. Those orders are challenged in the above O.P. invoking the visitorial jurisdiction of this court under Art. 227 of the Constitution of India. I heard the counsel on both sides.

(2.) Concededly, the judgment debtor in his application moved for setting aside the order declaring him ex parte under R. 106 of O. XXI of the Code has set forth a case that he did not receive notice on the execution petition filed, and had no knowledge of subsequent proceedings since he was employed abroad. Though evidence in the case indicated that he came to the country while execution proceedings continued and various orders were passed during its course learned Sub Judge gave more consideration to the endorsement made in the notice issued to him to hold that there was no personal service. Accepting the case canvassed by judgment debtor allowing his application order setting him ex parte in execution proceedings was set aside.

(3.) Learned Sub Judge has not taken note of nor understood the true meaning and import of sub-rule (1) R. 106 of O. XXI of the Code. That sub-rule reads thus;