JANJALI DEI ALIAS DAS Vs. DURGA CHARAN SWAIN

JUDGEMENT

(1.) AN order by the executing Court rejecting an application filed by the Petitioner under Order 21, Rule 58 of the Code of Civil Procedure has given rise to this appeal.

(2.) THE Appellant -Petitioner laid claim to the property attached and sought reliefs alleging that she had purchased the attached property along with other land for a valuable consideration by registered sale deed dated 21 -4 -1959 and was in possession thereof since then. The decree -holder controverted the allegations denying the transfer in favour and possession of the Appellant -Petitioner.. Both parties led evidence -oral and documentary. On assessment of the evidence, the executing court held that the Appellant -Petitioner had title to the property and was in possession thereof and the attachment deserved to be lifted but for the fact that the application filed by the Appellant -Petitioner was barred by principle of constructive res judicata.

(3.) UNDER the Code, prior to its 1976 amendment remedy was provided to the aggrieved party providing for a suit under Rule 63. Hence, this Court adopting the view of the Patna High Court held that recourse to Order 9 or Section 151 of the Code of Civil Procedure cannot be had by a party aggrieved. His remedy was a suit under Rule 63. (See, in this connection, Rasananda Rath v. Ratha Sahu : A.I.R. 1935 Pat. 122, Raghunath More v. E. I. D. Party dl Co. Ltd. and Ors. : 41 (1975) C. L. T.64, Niranjanlal Gupta and Ors. v. Dhirendra Mohan Panda and Ors. : 49 (1980) C.L.T.. 408, Labanya Mohankudo and Ors. v. Municipal Council, Parlakhemundi and Ors., 1975 (2) C.W.R. 1071.) Under the law, as amended by the Amendment Act of 1976, provision has been made in Rule 106 enabling the party, whose application under Order 21, Rule 58 of the Code of Civil Procedure has been dismissed for default or against whom an order has been passed ex parte, to move the executing Court for setting aside the order showing sufficient cause for his non -appearance. Hence, the express provision contained in the said rule excludes the operation of Order 9 and Section 151. This view finds support from the decision of this Court in Naka Dandu v. Sodi Savitri and Ors. : 62 (1986) C.L.T. 178 (vide paragraph 5).