Point of Law: When the judgment debtors approached the Court to set aside the ex-parte decree passed against them, the propriety demands that the further proceedings in E.P. are stayed till the application filed under Order IX Rule 13 C.P.C. or the one under Section 5 of the Limitation Act is disposed of or atleast for a reasonable time

ORDER :

1. This civil revision petition: is filed against the order, dated 20.6.2019 in E.P. No. 95 of 2014 in O.S. No. 50 of 2014 on the file of the Principal Junior Civil Judge, Macherla.

2. The petitioner is defendant and respondent is plaintiff in the suit proceedings.

3. As per the permission accorded to the petitioner by this Court on 16.6.2020, the Counsel for the petitioner issued notice to the respondent. A memo of proof of service was filed on 23.7.2020 in which it was stated that the notice sent to the respondent by Registered Post was delivered to him on 1.7.2020 as per the “Track consignment” of the Postal Department. Inspite of service of notice, there is no appearance made on behalf of the respondent.

4. The respondent filed O.S. No. 50 of 2014 against the petitioner for recovery of an amount of Rs. 94,126/- basing on the promissory note before the Principal Junior Civil Judge Court, Macherla. The said suit was decreed ex-parte on 5.5.2014 against the petitioner. The respondent initiated Execution Proceedings by filing E.P. No. 95 of 2014. The petitioner received notice on 26.11.2014 in the E.P. According to him, he was not aware of the suit and passing of the ex-parte decree therein or filing of E.P. till receipt of the notice. The petitioner filed an application in I.A. No. 964 of 2014 in O.S. No. 50 of 2014 under Order 9 Rule 13 and Section 151 of C.P.C. seeking to set aside the ex-parte decree, dated 5.5.2014. The respondent filed counter-affidavit in I.A. No. 964 of 2014. The petitioner also filed a petition in I.A. No. 198 of 2018 in I.A. No. 952 of 2014 under Order 16 Rule 1(2) and Section 151 of C.P.C. to issue summons to the Post Master concerned to attend the Court to give evidence with regard to registered letter in the suit addressed to the petitioner with relevant registers and also to issue summons to the concerned Process Server for the purpose of giving evidence. While the said applications are pending, the order, dated 20.6.2019 in E.P. No. 95 of 2014 was passed by the execution Court allowing the E.P. holding that the Decree Holder is entitled to proceed with the E.P. Against the same, the present civil revision petition is filed.

5. Heard Sri Sasanka Bhuvanagiri, learned Counsel for the petitioner.

6. Learned Counsel for the petitioner submits that the decree was passed ex-parte without service of notice to the petitioner/defendant in the suit. The petitioner came to know about the ex-parte decree, dated 5.5.2014 only after receipt of the notice in the execution petition. Immediately, he filed I.A. No. 964 of 2014 in O.S. No. 50 of 2014 under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree. He further submits that the petitioner also filed I.A. No. 198 of 2018 in I.A. No. 952 of 2014 under. Order 16 Rule 1(2) of C.P.C. to issue summons to the Post Master concerned to attend the Court and give evidence with regard to the refusal of registered letter by the petitioner and also to issue summons to the concerned Process Server for the purpose of giving evidence regarding the refusal of summons by the petitioner. The grievance expressed by the learned Counsel is that the execution Court proceeded with the Execution Proceedings and allowed the E.P. as and when both the I.A. Nos. 964 of 2014 and 198 of 2018 are pending before the Court below.

7. Learned Counsel for the petitioner further submits that allowing the E.P. during the pendency of the interlocutory applications filed by the petitioner will give rise to conflict of orders by the same Court, if the interlocutory applications filed by the petitioner against the ex-parte decree are allowed. Learned Counsel would contend that the finding of the Court below that the judgment debtor did not express his willingness to pay the decreetal amount is erroneous due to reason that the judgment debtor is challenging the ex-parte decree and the debt amount. He also filed written statement alongwith I.A. No. 964 of 2014 disputing the debt. Finally he arg