Judgment

Mrs. Archana Puri, J.

Challenge in the present petition is to the order dated 03.04.2023 (Annexure P-18) passed by learned Addl. Civil Judge (Sr. Divn.), whereby, the applications filed by the petitioners-defendants, under Order 21 Rule 26 CPC and for recalling the order dated 15.02.2023, vide which, non-bailable warrants had been issued, were dismissed.

2. The background facts, as culled out, from the paper-book, are that, initially, Parveen Lata (since deceased) had filed a suit for recovery of Rs.43,19,535/- along with interest against present petitioner, on the allegations that the petitioners-defendants used to purchase cotton from the respondent-plaintiff and after adjustment, an amount of Rs.49,45,381/- was due on 31.03.2016, which had not been paid by the petitioners-defendants.

3. Even though, fact of business dealings, as such, has not been disputed, but however, it was claimed by the present petitioners that settlement had reached between the parties, in the shape of Canter and land and in this regard, a writing was also given by the respondent-plaintiff. Without mentioning the fact of settlement, so reached, the respondent plaintiff had filed suit for recovery. In this context, when the petitioners defendants met the respondent-plaintiff, they were apprised that the summons have been wrongly issued and the matter has already settled between them and respondent-plaintiff shall withdraw the suit. On this assurance, the petitioners-defendants, did not make appearance, but however, suit was not withdrawn and consequently, ex-parte decree was passed on 31.10.2019 against the petitioners-defendants.

4. On coming to know, about passing of the ex-parte judgment and decree, the petitioners-defendants filed an application under Order 9 Rule 13 CPC, thereby, seeking setting aside of the judgment and decree, copy whereof is Annexure P-3. During the pendency of the said application, since, there was no stay, execution remained pending and in the said execution, the respondent-plaintiff gave list of property of the petitioners-defendants, which is factory premises. Jamabandi annexed was for the year 2010-11, whereas, the petitioners-defendants had already sold the property vide sale deed dated 12.01.2017 and as such, the respondent plaintiff had given wrong list of property, to mislead the Executing Court.

5. In pursuance of the attachment of the said property, one Harish Goyal-objector, who was purchaser of half share of factory premises, filed objections under Order 21 Rule 58 CPC, mentioning therein that petitioners-Judgment debtors are not owner of the property. Thereupon, the Executing Court, vide order dated 02.05.2022, allowed the objection petition filed by the purchaser of half share of the property and ordered the release of the property. Copy of the said order passed on the objection petition is Annexure P-4. While releasing the property from attachment, also the concerned Executing Court had ordered the decree holder i.e. respondent-plaintiff, to file fresh list of properties on 30.05.2022. However, the list of properties was not filed.

6. Thereafter, before Executing Court, an application under Order 21 Rule 37 CPC was filed by the respondent-plaintiff-decree holder, upon which, notice was sent to the petitioners-judgment debtors. However, service was not effected, at first instance. Thereafter, when the service was effected, the petitioners-judgment debtors did not make appearance and consequently, non-bailable warrants against the petitioners was ordered to be issued, vide order dated 15.02.2023, copy whereof is Annexure P-11.

7. In