GURHARBANS SINGH @ HARBANS SINGH Vs. BALWANT SINGH DHILLON

JUDGEMENT

(1.) The challenge in this petition is to the order dated July 04, 2017 passed by the learned Additional Civil Judge (Senior Division), Tarn Taran in an application presented by the defendant judgment-debtor for staying the operation of the execution proceedings till final disposal of the pending application under Order 9, Rule 13 of the Code of Civil Procedure, 1908.

(2.) The application was contested by the opposite party/decree holder has been dismissed as not maintainable. In the original Court passed the decree since stay of execution proceedings is dealt with under Order 21, Rule 26 CPC which can be moved only before the Executing Court to whom the execution has been sent for satisfaction of the decree. The trial Court has held that it is not empowered to stay execution proceedings in an application under Order 9, Rule 13 CPC.

(3.) The plaintiff filed a suit against the defendant/petitioner for gaining possession of the suit land described in the head note falling in the revenue estate of village Kasel, Tehsil Tarn Taran, Amritsar. The plaintiff was a non-resident Indian and co-owner in the suit land. The plaintiff obtained an ex parte decree from the Civil Court on May 30, 2003. The sale deed executed in favour of the petitioner by proforma respondent No. 2/defendant was declared void and also the subsequent sale deeds executed by the petitioner. Petitioner denies proper service of the suit and asserts he had no knowledge of the proceeding which led to ex parte decree. Neither was he served with proper summons in the execution proceedings. The petitioner avers that after 13 years on February 26, 2016 he visited the office of the Patwari Halqa of village Kasel for some official work and there was informed by the Patwari that one Balwant Singh-respondent had obtained an ex parte decree against him and is now trying to get possession of the disputed land through warrants of possession. He says that he inquired into the matter and obtained a certified copy of the judgment and decree dated May 30, 2003 and proceeded to file an application under Order 9, Rule 13 CPC for setting aside the ex parte judgment and decree. This application is pending adjudication in the court at Tarn Taran. The next date is October 05, 2017.