PRAHLAD KUMAR Vs. AVTAR KRISHAN

JUDGEMENT

(1.) This petition is directed against the order of the executing Court dated 15th June, 1985 whereby the application filed by the judgment-debtor under Order 41, Rule 6(2) of the Code of Civil Procedure, was dismissed.

(2.) It is the money decree dated 30th December, 1975, which was being executed. It may be mentioned that earlier the parties had gone up to the Supreme Court in this very case. The decree was passed ex parte. The application for setting aside the ex parte decree has been dismissed by the trial Court. It is said that the appeal against the order dismissing the application for setting aside the ex parte decree is pending in the Court of District Judge. However, when execution was sought of the said decree, an application under Order 41, Rule 6, Code of Civil Procedure, was filed but the executing Court dismissed the same with the following observations :-

(3.) The main contention raised on behalf of the petitioner is that under the provisions of Order 41, Rule 6, the executing Court was legally bound to stay the sale of the property attached because an appeal against the decree was pending in the Court of the District Judge. According to the learned counsel, having failed to stay the sale proceedings, the impugned order was illegal, and, thus, liable to be set aside. It was further contended that the application could not be dismissed on the ground that such an application was dismissed earlier. In Support of this contention he referred to Jangir Singh Ganda Singh v. Mst. Nihal Kaur, 1965 AIR(P&H) 438 Bishan Singh v. Smt. Chanan Kaur, 1969 AIR(P&H) 200; Mst. Prito v. Iqbal Singh,1978 80 PunLR 284; Pehlad v. Dalel Singh, 1978 80 PunLR 125 and Rattan Kaur v. Maluk Singh, 1978 80 PunLR 683.