DWARIKA PRASAD Vs. INDRADEO LAL

JUDGEMENT

(1.) THIS miscellaneous appeal has been preferred against the order dated 21.9.2000 passed by the SubJudge 1st, Nalanda at Biharsharif, in Miscellaneous Case No. 25/90/13/94 arising out of Execution Case No. 11/89 whereby he has been pleased to dismiss the said Miscellaneous Case filed by the defendants -judgment debtors -appellants.

(2.) DURING the course of argument, none appeared on behalf of the appellants to argue in the appeal in spite of repeated calls. The learned Sr. Advocate, Sri Ram Kumar Sharma, appeared on behalf of the respondent no. 2 and submitted before this court that the appeal may be disposed of on merit instead of dismissing the appeal in default and, accordingly, this appeal is being disposed of on merit.

(3.) IT has been submitted by the learned advocate of the respondent no. 2 that the impugned order will show that the Money Suit was hotly contested by the defendants -appellants and in their presence the money suit was decreed and, so, this fact establishes that the appellant had full knowledge about the decree passed against him. Learned Advocate further submitted that as per the provision contained in Order 22 of Rule 21 of the Code of Civil Procedure, the decree holder was not required to give any notice to the judgment debtor if the execution case was filed within two years from the date of decree but even then the decree holder gave notice to the judgment debtors (appellants) about the filing of execution case. The learned Advocate submitted that the impugned order will show that the learned Sub -Ordinate Judge has come to the conclusion that the notice was duly served upon the judgment debtors. Learned Advocate further submitted that Miscellaneous Case No. 25 of 1990/13/94 filed by the appellants was itself barred under Article 127 of the Limitation Act as the same was filed much after the expiry of sixty days of the proclamation of sale as well as confirmation of sale. He further submitted that Sec. 5 of the Limitation Act under which the courts have power to condone the delay is not applicable to the provision of Order 21 of the Code of Civil Procedure and, as such, the courts have no power to condone the delay in such cases. On the above grounds, learned advocate of the respondent no. 2 prayed to dismiss the appeal.