KAMALAKANTA DAS Vs. GOVINDA CHANDRA PATRA

JUDGEMENT

(1.) The judgment-debtor in Execution case No. 10 of 1998 pending before the Civil Judge (JD), 1st Court, Cuttack has filed this Writ Petition challenging the order dated 14th December, 2004 passed by the Court below rejecting the Misc. Application No. 201 of 2004 filed by him under Order 21. Rules 89 and 90 read with Sections 47 and 151 of the Code of Civil Procedure praying to permit him to deposit the decretal amount and other expenses and to set aside the order of sale of a landed property measuring Ac.0.20 decimals appertaining to Sabik Plot No 2034 of Mouza Patapur (BaluBazar), Cuttack Town put to sale in the aforesaid Execution case arising out of Mony Suit No. 639 of 1983.

(2.) Bereft of unnecessary details, the facts as revealed from the records are that the petitioner took a loan of Rs. 1,000.00 from the opposite party, but then for certain inadvertent reasons he could not repay the same. Consequently the opposite party filed Money Suit No. 639 of 1983 before the Court below for realization of his dues from the petitioner and the suit was decreed ex parte on 16th November, 1986. It is averred by the petitioner that notice of the said suit was never served upon him and he was illegally set ex parte. The opposite party after a lapse of 11 years 9 months filed an Execution Case for realization of the decretal dues of Rs. 2,200.00. Notice of the said Execution Case to the petitioner had also returned unserved with a note that the judgment-debtor refused to accept the same, and on the basis of an affidavit filed fey the decree-holder opposite party service of notice on the petitioner was treated to be sufficient. On 21st September, 1998 the decree holder-opposite party filed a''petition under Order 21, Rule 54, CPC with a prayer to attach the movable properties of the petitioner. As no movable property of the petitioner could be traced, the immovable property of the petitioner, more fully described as above were attached. No steps having been taken by the petitioner-judgment debtor, after observing all paraphernalia, on 16th November, 1999 Notice of Proclamation of Sale under Order 21, Rule 66, CPC was directed to be published in local newspapers. Thereafter auction was conducted and the same was knocked down in favour of the decree holder-opposite party who offered the highest bid of Rs. 2,200.00.

(3.) It is asserted by the petitioner that no notice of either the suit or the execution case had been served on him and he was also not aware of any newspaper publication as he was at Calcutta during that time. Only after his return from Calcutta he learnt about the paper publication and then filed a petition before the Court below to stay the proceedings of the Execution Case and simultaneously filed Misc. Case No. 194 of 1999 praying to set aside the ex parte decree in M.S. No. 639 of 1983. The petition filed by the petitioner for staying further proceeding of the Execution Case having been rejected, he filed Civil Revision No. 75 of 1999 before the District Judge, Cuttack. The said revision was also dismissed. Thereafter the petitioner preferred OJC No. 16034 of 2001 before this Court which is sub ju-dice.