RAMKUMARI DEBI Vs. TARKESHWAR NATH PANDEY

JUDGEMENT

(1.) This is an application by the decree-holder in Title Suit No. 63 of 1970 and is directed against an order dated the 17th of July, 1972 passed in Execution Case No. 20 of 1971, staying delivery of possession of a house standing in plot No. 465, Khata No. 67 of village Kairiya, police station Kahalgaon, district Bhagalpur.

(2.) The petitioner had obtained an ex parte decree in the aforesaid Title Suit No. 63 of 1970 from the Court of the Subordinate Judge, Bhagalpur, on the 30th of January, 1971. Thereafter, she levied execution of the decree, which was numbered as Execution Case No. 20 of 1971 of the aforesaid Court. The opposite parties in this petition, as judgment-debtors, tiled Miscellaneous Case No. 56 of 1971 for setting aside the ex parte decree on the ground that they had no notice of the suit and the service of the summons, etc., were all suppressed. This miscellaneous case was dismissed for default on the 10th of September, 1971 and the judgment-debtors filed a petition for its restoration and also another petition under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for the purpose of setting aside the ex parte decree. It appears that the petition for restoration as well as the petition under Order 9, Rule 13 of the Code was a composite sort of a petition and it was registered as Miscellaneous Case No. 117 of 1971. This Miscellaneous Case No. 117 of 1971 was dismissed on merits on the 22nd of May, 1972. Naturally, thereafter, the plaintiff applied for proceeding with the Execution Case No. 20 of 1971 and for delivery of possession of the house. This application was filed on the 30th of May, 1972. On a petition filed by the judgment-debtors, however, delivery of possession was stayed till the 11th of July, 1972. In the meanwhile the judgment-debtors filed a title suit being Title Suit No. 193 of 1972 of the Court of the Subordinate Judge, Bhagalpur, for a declaration that the ex parte decree obtained in Title Suit No. 63 of 1970 was by fraud and not binding. The decree-holder, on the other side, pressed for deli-very of possession to be made hi her favour, if necessary, under police protection. Thereafter the impugned order was passed staying delivery of possession. This order, as I nave stated above earlier, has been passed in the execution case.

(3.) Mr. Mishra appearing for the petitioner assailed the order on two grounds: