POORANAM Vs. DURGESWARI

JUDGEMENT

(1.) The respondent, on the basis of the order obtained by her in R.C.O.P.No.166 of 2013 against the revision petitioner, levied execution proceedings in E.P.No.101 of 2015. It is also found that the respondent had obtained ex parte order in the above said rent control original petition. Be that as it may, the ex parte order also being a valid order in the eyes of law till it is set aside, it is found that the respondent levied the above said execution proceedings against the revision petitioner. It is found from the materials placed that the revision petitioner has also entered appearance in the execution proceedings above mentioned through her Advocate and at one stage of the matter, inasmuch as the revision petitioner remained absent and did not contest the execution proceedings, an ex parte order has been passed against her in the said execution petition. It is found that the ex parte order in the execution petition has been passed against the revision petitioner on 28.03.2016. As seen above, when the revision petitioner has entered appearance in the execution petition through her Advocate and been aware of the execution proceedings levied against her by the respondent, it is found that as rightly determined by the Court below, the revision petitioner is aware of the ex parte order also passed against her in the execution petition. While so, when the respondent sought for recovery of the possession of the property through the above said execution proceedings through Amin, it is found that at that stage of the matter, the revision petitioner has come forward with an application in E.A.No.142 of 2016 to set aside the ex parte order passed against her in the execution petition claiming that already steps have been taken to set aside the ex parte order passed against her in the rent control original petition and the same is pending and she had also paid rent upto a particular point of time and believing that the respondent would withdraw the execution petition, she had not filed counter in the execution petition and ultimately, she having been set aside in the execution petition and the said fact having come to her knowledge only on the date of the visiting of the Amin for taking possession of the property from her pursuant to the order passed in the execution petition, according to her, she has been necessitated to lay the application.

(2.) Stiffly resisting the above said application preferred by the revision petitioner, it is contended by the respondent that it is false to state that the revision petitioner had paid the rent for the property upto a particular point of time as put forth by her in the application. The rent had been paid without prejudice to the eviction proceedings and further, according to her, the revision petitioner has not adduced any cause muchless sufficient cause to set aside the ex parte order passed against her in the execution petition and that apart, according to the respondent, it is false to state that the revision petitioner has become aware of the ex parte order passed in the execution petition only on the date of the Amin visiting the property and on the other hand, the revision petitioner is well aware of the ex parte order passed against her in the execution petition as she had entered appearance in the execution proceedings through her Advocate and in such view of the matter, it is stated that the present application preferred by the revision petitioner to set aside the ex parte order, dated 28.03.2016, very belatedly and not within the time allowed by law is hit by the law of limitation and hence, the application preferred by the revision petitioner should be rejected on merits as well as on the footing that she has not preferred any application to condone the delay in filing the application to set aside the ex parte order.

(3.) The Court below, on a consideration of the rival contentions and the materials put forth by the respective parties, found that the ex parte order having been passed against the revision petitioner in the execution petition on 28.03.2016, the application levied by her to set aside the same beyond the period allowed by law on 17.06.2006 is not within the stipulated time and therefore, the application is liable to be dismissed on that score alone. Further, the Court below also found that the revision petitioner has not given any cause whatsoever worth acceptable to set aside the ex parte order passed against her in the execution petition and the revision petitioner having been aware of the execution petition should have taken due steps by filing counter to resist the execution petition and in particular, seeing the conduct of the revision petitioner in not even contesting the main rent control original petition and leaving the same to go for ex parte and further also leaving the execution petition to go for ex parte, found that the present application has been preferred by the revision petitioner only to procrastinate the delivery of the possession of the property to which the respondent is entitled to and hence, dismissed the application. Impugning the same, the present civil revision petition has been preferred.