A court must consider all relevant applications before allowing execution of a decree.

ORDER:

The petitioner/Judgment Debtor No.1 (defendant No.1 in O.S.No.709 of 2014) has assailed an order dated 18.07.2024 passed by the learned Senior Civil Judge, Warangal at Hanmakonda, in E.P.No.46 of 2022 (Old E.P.No.42 of 2021) in O.S.No.709 of 2014, by which the E.P. was allowed and an attachment warrant was issued against the salary of the petitioner under Order XXI Rule 48 of The Code of Civil Procedure, 1908 (C.P.C).

2. The proof of service placed before the Court shows that the notice sent to the respondent No.1/Decree Holder was returned unserved with an endorsement “Refused”. Hence, the respondent No.1 is deemed to be served.

3. According to learned counsel for the petitioner, the respondent No.2 is not a necessary party since the respondent No.2 is the Judgment Debtor No.2.

4. The only point argued by learned counsel appearing for the petitioner is that the petitioner was unaware of the ex parte decree passed by the Trial Court in the Suit on 04.12.2017 in favour of the respondent No.1/Decree Holder for an amount of Rs.6,88,000/- with costs and interest from the date of the Suit till the date of realization. Counsel submits that the petitioner/Judgment Debtor No.1 filed an application for setting aside the ex parte decree on 04.01.2019 i.e., before filing of the E.P. in 2021. Counsel further submits that despite filing of the application, the Executing Court did not take that fact into account and proceeded to allow the E.P. by way of the impugned order.

5. Paragraph 3 of the impugned order records the submissions made on behalf of the petitioner/Judgment Debtor No.1 which are to the effect that the conclusions in the E.P. are not correct and that the Judgment Debtor No.1 filed an application under Order IX Rule 13 of the C.P.C to set aside the ex parte decree. The operative portion of the impugned order, however, does not contain any finding with regard to the application filed by the petitioner. The Executing Court simply stated that there is no stay order of any competent Court against the ex parte decree. There is no discussion with regard to the fact of filing of the application for setting aside the ex parte decree and the status of such application. The Executing Court summarily allowed the E.P. without going into any of the details which were relevant in light of the pending application.

6. If an application for setting aside the ex parte decree was indeed pending as on the date of passing of the impugned order, the Executing Court had a duty to consider the fact of filing of any such application and come to a conclusion with regard to the merits of such application. Instead of doing that, the Executing Court hurriedly concluded that the E.P should be allowed and the petitioner’s salary should be attached.

7. C.R.P.No.3279 of 2024 is accordingly allowed. The impugned order dated 18.07.2024 is set aside. The matter is remanded to the Executing Court to hear E.P.No.46 of 2022 afresh and pass appropriate orders taking into account the application filed by the petitioner under Order IX Rule 13 of the C.P.C. All the parties shall place their relevant facts and documents before the Executing Court and not take any adjournments. The Executing Court shall hear and decide the matter within 10 days from the date on which the petitioner produces this order before the Executing Court which shall not be later than 27.01.2025.

8. Miscellaneous Applications, if any, pending in this petition stand closed. There shall be no order as to costs.

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MOUSHUMI BHATTACHARYA, J Date: 21.01.2025.

va