ASHA Vs. BHARAT SINGH AND OTHERS

JUDGEMENT

(1.) PRESENT writ petition has been filed questioning the validity of the order dated 21.05.2009 passed by Additional District Judge, Mathura dismissing the revision against the order dated 22.02.2008 passed by Civil Judge (Junior Division) Mathura allowing the application of decree holder Bharat Singh under Order 21 Rule 106 C.P.C by setting aside order dated 01.02.2002 .

(2.) BRIEF background of the case is that JSCC suit no. 32 of 1977 (Bharat Singh Vs. Ganga Devi and others) had been filed claiming eviction. Said suit in question was decreed on 17.04.1996 and Execution proceedings No. 8 of 1996 was initiated by Bharat Singh against Ganga Devi. Said execution proceedings was being contested by filing objection under Section 47 of C.P.C which was registered as Misc. SCC No. 29 of 1998. An application under Order 9 Rule 13 CPC was also filed and same was registered as Misc. Case No. 29 of 1998. Execution Case No. 8 of 1996 (Bharat Singh Vs. Ganga Devi) was on going in the court of Judge Small Causes (Civil Judge(Junior Division) Mathura. On 01.02.2009, Execution Case No. 8 of 1998 was dismissed in default. Application 4-C dated 28.05.2002 was field by Bharat Singh. Said application was objected to. Executing Court on 22.02.2002 allowed the application and set aside the order dated 01.02.2002. Aggrieved against the same petitioner filed revision before District Judge which was registered as JSCC Revision No. 6 of 2008. Said revision has been dismissed. At this juncture present writ petition has been filed.

(3.) AFTER respective arguments have been advanced factual position which is emerging in the present case and the facts which have been noted and detailed out in the order which has been passed by the both the courts below is that in Execution case and in both the Misc. Cases at all point of time same dates were being fixed and for no rhyme and reason in Execution Case No. 8 of 1996 in stead of fixing 20.07.2001, 23.08.2001 was fixed and thereafter 27.10.2001 was the date fixed and thereafter on 14.12.2001 and then 01.02.2002 was the date fixed. Courts below have taken note of the fact that said date has been fixed without any knowledge or notice of the parties and were different date than the date fixed in two other miscellaneous cases and once there was fault of the court and on 11.02.2002 no date was fixed for execution then in this background said order in question could not have been passed and on account of fault of the court said order has been passed. Court below in the present case has exercised its inherent authority under Section 151 C.P.C to recall the order then in the fact of the present it cannot be said that it is arbitrary exercise of discretion merely because decree holder has moved application mentioning Order 21 Rule 106 C.P.C. Decree holder was not obliged to move application for condonation of delay specially when it was fault of the court and thereafter court below has proceeded to recall the order in exercise of its discretion and said exercise of discretion by courts below is sound exercise based on due application of mind, as such there is hardly any scope of interference with the same. Consequently, present writ petition is dismissed.