Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8828 of 2018 Petitioner :- Zahir Alam Respondent :- Santosh And 3 Others Counsel for Petitioner :- Rafiuddin Ansari
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the order dated 12.10.2018 whereunder the revisional court has refused to grant ex-parte interim order in favour of the petitioner. Submission of learned counsel for the petitioner is that as soon as the revision was admitted/entertained by the court below, it was incumbent upon the revisional court to stay the execution proceedings in order to protect the interest of the petitioner/revisionists.
In case the ex-parte decree is executed, the prayer of the petitioner seeking its recall would become infructuous.
Testing this submission of learned counsel for the petitioner, relevant is to note that the Original Suit No.695 of 1984 was decided ex-parte on 29.8.1986.
Pleading fraud by the plaintiff, the defendant/petitioner had filed an application for recall/restoration under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (in short 'C.P.C.') on 20.12.1988. The said application was dismissed for want of prosecution on the part of the petitioner/applicant on 25.4.1998.
The restoration application under Section 151 C.P.C. was filed on 24.4.1999 which has been dismissed vide order dated 5.12.2017, which gives rise to the revision, wherein the order impugned dated 12.10.2018 has been passed.
The Execution Case No.25 of 1987 is pending since after the decree was passed. Learned counsel for the petitioner though submits that the proceedings of execution were stayed during the pendency of the application under Order 9 Rule 13 C.P.C. seeking recall of ex-parte order dated 29.8.1986, however, it is admitted that since after 25.4.1998 when the said case was dismissed for non- prosecution, no interim order is operating.
In the said circumstances, no infirmity much less an illegality can be attached to the order dated 12.10.2018 passed by the court below whereby the revisional court has opined that no interim order can be granted without notice to the opposite parties. The present petition is, thus, found devoid of merits and hence dismissed.
It goes without saying that the Revisional Court shall decide the matter on merits independently and shall not be guided by any of the observations made hereinabove.
Order Date :- 29.11.2018 Jyotsana