PRALHAD KISAN GILABILE Vs. RAGHUNATH NARAYAN TAPKIR

JUDGEMENT

(1.) Heard Counsel for the parties.

(2.) This Petition takes exception to the order passed by the Executing Court on 28th June 1994 which has disposed of the Application preferred by the petitioner praying that the regular Darkhast No. 33/1977 cannot proceed in view of the subsequent events. The regular Darkhast No. 33/1977 was the outcome of the ex parte decree passed in favour of the decree holder. It is not in dispute that the said ex parte decree was later on set-aside. As a result of which, the Suit was restored to the file to be proceeded in accordance with law. The restored Suit was proceeded further and eventually was decreed on 22nd June 1982. After the said decree, the decree holder once again filed another Darkhast 409/1982 which, however, has been later on dismissed for default. Instead of pursuing the subsequent regular Darkhast No. 409/1982 to its logical end by getting it restored, the decree holder wanted to continue with the regular Darkhast No. 33/1977. It is for that reason, the petitioner moved application (Exhibit 199). However, the Court passed impugned order below Exhibit No. 1 without recording any reasons.

(3.) The question is: whether it was open to the decree holder to pursue regular Darkhast No. 33/1977 at all. The answer is obviously in the negative. Once, the exparte decree on the basis of which regular Darkhast No. 33/1977 came to be filed, itself was set-aside, the said regular Darkhast could not have proceeded further at all. Rather, the Executing Court ought to have terminated the same on that basis alone. Indeed, the decree holder having succeeded to get the decree on 22nd June 1982 in the restored Suit was entitled to pursue execution action relying on the said decree. It is not in dispute that the decree holder in fact filed regular Darkhast No. 409/1982 as a consequence of decree passed on 22nd June 1982. As aforesaid, the latter Darkhast came to be dismissed for default. If that Darkhast is dismissed for default, that cannot be cause for the decree holder to pursue regular Darkhast No. 33 of 1977 which was instituted in anterior point of time much before the decree itself came into being. As aforesaid, the regular Darkhast No. 33 of 1977 in law could not continue further after the setting-aside of the exparte decree.