VINOD G AGRAWAL Vs. ASHISH DAVE

JUDGEMENT

(1.) THE petitioner, against whom execution proceedings (darkasht) have been filed being Execution Application No. 521/2003, has approached this Court under Article 226 of the Constitution of India, challenging the order dated 29/7/2004 passed below exhibit-29, whereby the petitioner requested the executing court for recalling the ex-parte order which had been passed in the first sitting, where under the court had issued jungam warrant for realising decreetal amount, and heard learned advocate for the petitioner right on the same day as he had gathered an impression that the executing proceedings would only be taken up in the second sitting. THE executing court passed order as under.

(2.) AS the other side has not given consent, hence this application is rejected as order is already passed by the Court.

(3.) THE order impugned indicates that the court did not of its own discretion rejected the application. THE court has given reason that as the other side is not consent, the order ordering jungam warrant cannot be recalled. In my view, by passing such order the court has actually refused to exercise jurisdiction vested in it and, therefore, said order cannot be sustained. THE court ought to have passed reasoned order for not accepting the application for recalling order. In my view, when the application by the objector was placed on record for recalling on the very same day, and when said application clearly indicated that the advocate for the applicant/objector was given to understand that said matter would be taken up on second half of the day, it would have been most appropriate if the order on merits had been passed on the application.