ARJUNA GOUNDER Vs. GOVINDARAJU REDDIAR

JUDGEMENT

(1.) THIS civil revision petition is directed against the dismissal of an application under S. 47 C.P.C. filed by the petitioner herein fora declaration that the proceedings in E.P. No. 271 of 1987 are invalid and for dismissal of E.P. No. 271 of 1987.

(2.) THE short facts which are relevant for the purpose of this revision petition are as follows:?THE respondent obtained a decree for declaration of his title and for an injunction restraining the petitioner from interfering with his possession. THE decree was passed on 20-6-1986. THE respondent filed E.P. No. 271 of 1987 under O. 21, R. 10 C.P.C. for execution. In the relief column, he prayed for an order under O. 21, R. 32 C.P.C. for arrest of the petitioner herein for having disobeyed the decree and als o for attachment of the properties of the petitioner and sale of the same. It is stated in the execution petition that the respondent had incurred a loss of Rs. 20,000 on account of the petitioner's disobedience of the decree. No doubt, the portion relating to the claim of Rs. 20,000 was inserted in the execution petition, but there is nothing on record to show that it was done after the execution petition was presented in Court. In ail probability, it was done even when the execution petition was filed in Court.

(3.) IN the meanwhile, the petitioner filed an application under S. 47 C.P.C. on 12-2-1990. That application was contested by the respondent herein. The court passed an order on 22-3-1990 dismissing the application. The reasoning of the executing court is that the petitioner who had notice in the execution proceedings did not state anything about the disobedience of the decree in the counter filed by him and he had sufficient opportunities to have set aside the ex parte order passed on 22-10-1987 and raise the attachment subsequently when it was ordered. INspite of the said opportunities, the petitioner, not having taken any steps either to raise the attachment or set aside the ex parte order in the execution proceedings, it was not open to him to file an application under S. 47 C.P.C. questioning the validity of the execution proceedings. The executing court took the view that the remedy of the petitioner was only to set aside the order dated 22-10-1987 and he having failed to do so, was not entitled to mainain an application under S. 47 C.P.C. It is the said order which is questioned in this civil revision petition.