SARLA DEVI Vs. MOHAN MOHTO

JUDGEMENT

(1.) PRAYER in this writ application is for quashing the order dated 26-06-2008 passed by the Munsif, Khunti rejecting the petitioners' petition dated 06-06-2008 for setting aside the ex-parte order dated 27-05-2008 passed by the learned court below in a execution proceeding vide execution Case No. 5 of 2007.

(2.) HEARD learned counsel for the petitioners and learned counsel for the respondents.

(3.) BEFORE going into the grounds advanced by the petitioners for assailing the impugned order of learned court below, it is felt appropriate to briefly record the history of the present case. A suit for partition was instituted by the respondents/plaintiffs against the present petitioners/defendants way back in 1979. A preliminary order was passed by the trial court in favour of the plaintiffs and later, after giving opportunity to the defendants to be heard, the final decree was passed in july, 2007. The defendants had preferred an appeal against the final decree which is presently subjudice. In the meantime, the plaintiffs/decree holders had filed an execution proceeding before the Executing court sometime in the year 2007, after the final decree was passed. In the Execution proceedings notices were issued to the judgment debtors/present petitioners but they did not appear in the execution proceedings. Though a few of the judgment debtors had appeared but the remaining did not. The proceedings remained pending, awaiting the appearance of all the judgment debtors. Repeated notices were issued to them. Ultimately, the service reports were received along with the endorsement of the process server. Learned court below had observed from the reports that while the notices were accepted by some of the notices, the others had refused to accept the same. Accepting the process server's report, the learned court below had declared that the notices on the concerned judgment debtors, were effectively served. When the next date was fixed in the case, the non-appearing parties had filed their appearance through their counsel. A prayer was made by the learned counsel on their behalf by way of raising objections against the maintainability of the execution proceedings and seeking time to file" objections under Order 21 Rule 105 (3)C. P. C. The learned court below conceded the prayer of the learned counsel to produce the order of stay, if any, passed by the appellate court in the pending appeal. No order of stay was either obtained or filed by the petitioners and neither did they file any objections against the continuance of the proceeding in the court below even on the next date. Under such circumstances, the court below vide the impugned order posted the case to the next date directing the decree holders to file the requisites in the mean time, for issuance of writ. The petitioners, thereafter, filed their petition praying for recalling the ex-parte order dated 27-05-2008 but the learned court below rejected the prayer.