UDAYAKUMAR Vs. MURUGANANDHAM

JUDGEMENT

(1.) Heard both sides. The order of the learned Judge is unsustainable. The petitioner has filed execution petition in H.P.R. No. 80 of 1995 for executing the decree passed in O.S. No. 206 of 1990. He has stated in that petition that he got assignment of the decree from the plaintiff decree holder on 28-10-94 for proper consideration. There is a prayer in the said petition under Order 21, Rule 16, Code of Civil Procedure, for recognising him as assignee decree holder. He has also prayed for further reliefs in the execution petition. Notice was ordered in the said petition by the executing Court returnable by 2-4-1995. On 3-4-1995 the matter was taken up. The Court recorded that service had been effected and it was sufficient. The respondent in the execution petition viz., the original decree holder and the judgment-debtor remained absent. They were set ex parte. The matter directed to be called on 7-4-1995. The executing Court ought to have ordered on that day itself the prayer recognising the petitioner herein as the assignee decree holder. But, without doing so, the executing Court adjourned the matter. It was thereafter adjourned from time to time.

(2.) E.A. No. 88 of 1995 is a petition filed by the petitioner herein for passing an order to send for the entire sale amount, which was with the District Munsif Court, Pollachi, in pursuance of the sale held in H.P.R. No. 101 of 1993 as per the decree in O.S. No. 356 of 1991 to the credit of the suit in O.S. No. 206 of 1990 for ratable distribution of the assets of the judgment-debtor. The Court in which the execution proceedings in O.S. No. 206 of 1990 is pending, is a superior Court. In the said application, the judgment-debtor in the suit and the decree holder in O.S. No. 356 of 1991, are impleaded as respondents. H.A. No. 89 of 1995 is for stay of further proceedings in execution of the decree till the disposal of I.A. No. 88 of 1995.

(3.) In these applications notice was ordered to the respondents therein. On 3-4-1995, the Court reported that service on the 1st respondent in the said application, i.e. the judgment-debtor in the suit was sufficient and that he was absent. He was not ex parte. The 2nd respondent, who is the decree holder in O.S. No. 356 of 1991, entered appearance through an Advocate by name C. Venkatachalapathy. He took time for filing counter. The matter was adjourned to 10-4-1995 on which date, it was heard. On 17-4-1995, the Court passed the order, which is impugned in this Civil Revision Petition.