MURLI MANOHAR PRASAD Vs. PARWATI DEVI

JUDGEMENT

(1.) This application is directed against the order dated 2.12.1982 passed by the Munsif, East Muzaffarpur in Misc. Case No. 8/82. The aforesaid Misc. Case arose out of Money Suit No. 101/79 which was decreed ex -parte. By the impugned order the court below has rejected the prayer of the petitioner for staying further proceedings in the execution case which has been registered as Execution Case No. 1/82 pending in the court of Special Execution Munsif . The application filed by the petitioner was labelled as one under Order 21 Rule 29 read with Sec. 151 of the Code of Civil Procedure (hereinafter referred to as the Code). The court below has rejected the prayer for stay merely on the ground that any order of stay, if passed shall delay the execution case. I, for one, cannot understand the implication thereof. The prayer of stay is always made for the purpose of staying certain proceedings in the court and any stay if granted inevitably attracts the delay in disposal of a case. The order of stay will cause further delay in the execution case is no ground for refusal of the stay. The order has, therefore, erroneously been passed by the learned Munsif affecting a jurisdictional error. Here a short narration of some other facts is necessary in order to amplify the provisions of Order 21 Rule 29 of the Code and the implication of Sec. 144 thereof. As already stated above, an ex -parte decree was passed against the petitioner. Thereafter his moveable properties were attached and put in the court malkhana. An execution case was levied which has already been mentioned earlier. When the petitioner came to know about the ex -parte decree having been passed against him he filed an application for setting aside ex -parte decree under Order 9 Rule 13 of the Code. That gave rise to Misc. Case No. 8/82 with which were (are seized ) (sic) in this case. Perhaps, under a wrong legal advice the application was labelled as one under Order 21 Rule 29 of the Code read with Sec. 151 thereof. As a matter of fact, on a plain reading of the provision of Order 21 Rule 29 of the Code that provisions is not applicable to the facts of the present case. Order 21 Rule 29 reads thus : - -

(2.) Learned Counsel for the opposite party tried to persuade me to hold that in case the application under Order 9 Rule 13 is allowed and the ex -parte decree is set aside, recourse may be taken by the petitioner to the provisions of Sec. 144 of the Code. This contention is absolutely misconceived. Sec. 144 (1) of the Code reads thus :

(3.) The court below, therefore, ought to have resorted to its jurisdiction under Sec. 151 of the Code and ought to have granted the stay of the execution proceeding pending the final disposal of the application under Order 9 Rule 13 of the Code registered as Misc No. 8/82 as aforementioned. The most that can be done in favour of the opposite party is to direct the court below to dispose of the application for setting aside the ex -parte decree as early as possible. If the petitioner ultimately loses, the law shall take its own course. But if he succeeds justices will be denied to him by refusing to grant stay during that period. The sooner the Misc. Case is disposed of the better for all the parties concerned.