KALLO Vs. FAKHIRUDDIN

JUDGEMENT

(1.) This writ petition is directed against the order dated 11.5.2012 passed by Civil Judge (Senior Division), Agra in Execution Case No. 16 of 1993 rejecting petitioners' application for recall of order dated 23.9.2011 passed on application No. 54-C of respondent No. 1/3 under Order XXII, Rule 10 of Code of Civil Procedure. The application was filed seeking recall of order dated 23.9.2011 on the ground that copy of said application was never served upon petitioners-applicants and order has been passed without giving any opportunity of hearing and is an ex parte order.

(2.) The Court below however has recorded a finding that copy of aforesaid Application No. 54-C was served upon judgment-debtors on 3.9.2004 and thereafter due opportunity of hearing was afforded to all parties and after almost seven years since then the order was passed on 23.9.2011. This finding has not been challenged in the entire writ petition to be perverse or contrary to record. There is no averment in the entire writ petition that copy of application was not served upon petitioners on 3.9.2011.

(3.) Learned Counsel for the petitioners further submitted that even on merits the Court below has proceeded illegally with the execution inasmuch as the decree holder did not file any execution within time and substitution allowed was not legal.