Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1048 of 2018 Petitioner :- M/S. Broadway Textiles Limited And 2 Others Respondent :- M/S. Rajesh Kumar Pokhrana And 6 Others Counsel for Petitioner :- Rajendra Kumar Pandey Hon'ble Manoj Kumar Gupta,J.
Supplementary affidavit filed today is taken on record.
On 17.7.2014 Execution Case No.15 of 2010 filed by the respondent-decree holder was dismissed in default. The heirs of the original decree holder filed an application seeking recall of order dated 17.7.2014. In the application, they specifically stated that Lal Chand Pokhrana, the proprietor of decree holder firm, died on 16.6.2014 and information in that regard could not been communicated to the counsel, resulting in non prosecution of the case and its dismissal in default. The application was allowed by the executing court by order dated 19.7.2016. The petitioners, who are judgement debtors, filed an application dated 16.11.2017 for recall of order dated 19.7.2016 contending that the order has been passed without service of summons of the restoration application upon them. The executing court by impugned order dated 9.1.2018 has rejected the recall application. While rejecting the recall application, the executing court has recorded a categorical finding that on presentation of restoration application, notice was issued to the judgement debtors. It has also been recorded in the impugned order that on 25.3.2016 the service of summons of the restoration application upon the judgement debtors was held to be sufficient by publication. Thereafter, the matter was taken up for consideration and the execution case was restored to its original number.
Counsel for the petitioners submitted that the impugned order dated 19.7.2016 was passed without any notice to the petitioners. It is urged that the executing court has erred in rejecting the application dated 16.11.2017.
Despite specific finding by the executing court that service of summons of the restoration application was held to be sufficient by publication on 25.3.2016, the petitioners have not filed any material on record to prove that the service by publication was in any manner defective or not warranted in the facts of the case. The effect of the order dated 19.7.2016 is that the execution case has been restored to its original number and will now be decided on merits. In such view of the matter, this Court is not inclined to interfere with the impugned orders in exercise of its supervisory power under Article 227 of the Constitution.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 28.2.2018 SL