The central legal point established in the judgment is the independent consideration of the application under Order 9, Rule 13 of the CPC by the trial court without being influenced by earlier observations made in the execution case.

JUDGMENT :

Sanju Panda, J. - In this writ petition, challenge has been made by the National Insurance Co. Ltd. to the order dated 04.10.2007 passed by the learned Civil Judge (Sr. Division) 1st Court, Cuttack in Execution Case No. 94 of 2001 rejecting the petition filed by the decree holder-opposite party to stay the further proceedings of Execution Case No. 94 of 2001.

2. The factual backdrop of the case is as follows;

Plaintiff is opposite party, National Insurance Company Ltd. is Defendant No. 1 and Orissa State Financial Corporation is the proforma Defendant No. 2. Opposite party, as Plaintiff, filed Money Suit No. 151 of 1984 in the Court of learned Civil Judge (Sr. Division), 1st Court, Cuttack with a prayer to decree Rs. 90,000/- with pendente lite and future interest at the rate of 15%% per annum on the allegation that he is the owner of the truck bearing registration No. OSO-818 which was purchased with the finance given by the OSFC. The truck was insured with the National Insurance Company Ltd. for the period from 30.6.79 to 29.6.80. On 19.6.1980, the right side of the truck was stuck-up to the sand as a result of which the vehicle could not be removed from the said sand at the working place of Rengali Dam Project. Thereafter, the vehicle was washed out by flood water and it was not traced out. An F.I.R. was lodged at Rengali Police Station. A claim application was filed thereafter on 24.6.1980 before the Insurance Company claiming compensation as the damage occurred during subsistence of the insurance policy. After inspection conducted by the Surveyor, the claim of the opposite party was rejected. Being aggrieved, the claimant filed the suit. The Insurance Company after receiving notice appeared in the suit and filed its written statement traversing the claim of the Plaintiff. The said suit was dismissed for default of the Plaintiff. Thereafter, the same was restored by the appellate authority and in the process, four years passed. After restoration, the Insurance Company did not contest the suit and vide Judgment dated 29.3.2001 the learned First Additional Civil Judge (Senior Division), Cuttack passed an ex parte decree against he Insurance Company. The trial Court directed that the Insurance Company is liable to pay compensation of Rs. 90,000/-along with 12% interest. Thereafter, Plaintiff-opposite party filed the execution case which was registered as Execution Case No. 94 of 2001 and executed the decree in the Court of learned Civil Judge (Senior Division), 1st Court, Cuttack claiming a compensation of Rs. 2,86,847.25 ps. (principal along with interest). The Insurance Company after receiving notice appeared in the said execution case on 13.11.2003. Thereafter, the Insurance Company filed an application under Order 9, Rule 13 of the CPC to set aside the ex parte decree passed by the learned First Additional Civil Judge (Senior Division), Cuttack which was registered as-CMA No. 11 of 2007 arising out of Money Suit No. 151 of 1984. The Insurance Company also filed an application before the learned Civil Judge (Senior Division), 1st Court, Cuttack to stay further proceeding of the execution case till disposal of the petition under Order 9, Rule 13 of the CPC. The decree holder filed an objection to the said application stating that the petition was liable to be rejected as the Insurance Company had received notice, appeared in the Execution Case on 13.11.2003 and filed a petition under Order 9, Rule 13 of the CPC in the year 2007 and therefore, they did not take appropriate steps before the competent Court to set aside the ex parte decree. The learned Civil Judge (Senior Division), 1st Court, Cuttack rejected the application of the Insurance Company on the ground that by mere filing of an application under Order 9, Rule 13 of the Code of Civil Procedure, the executing Court cannot stay the further proceeding of the execution case and the decree holder will be harassed if the suit will restore and proceed before the tr