JUDGMENT:

Aggrieved by the order dated 10.07.2006 in E.A.No.42 of

2006 in E.P.No.51 of 2005 in O.S.No.25 of 1987 (hereinafter will be referred as ‘impugned order’) on the file of learned Principal Senior Civil Judge at Kamareddy, the Judgment Debtor No.5 filed the present Civil Miscellaneous Appeal to set aside the impugned order.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Principal Senior Civil Judge at Kamareddy.

3. The brief facts of the case as can be seen from the record available before this Court are that the plaintiffs – decree holders have filed O.S.No.28 of 1987 for eviction of the defendants – JDRs from the suit schedule property, arrears of rent, damages, possession of the suit schedule property and future rent. The said suit was decreed on 04.08.1999. Thereafter, the plaintiffs have filed E.P.No.51 of 2005 for execution of the decree. The JDR No.5/petitioner was called absent on 10.07.2006 and as there was no representation for the JDR No.5 the petition was dismissed for default. As a consequence, the JDR No.5 was set exparte in E.P.No.51 of 2005 and warrant of eviction and attachment of movables of JDR No.5 was issued. Aggrieved by the same, the JDR No.5 has preferred the present Civil Miscellaneous Appeal.

4. Heard both sides and perused the record including the grounds of appeal.

5. As seen from the impugned order, it is observed that the JDR No.5 was set exparte on 10.07.2006 in E.P.No.51 of in view of non representation before the Court. It is the contention of the appellant that the petition filed by the JDR No.5 under Order XXI Rule 106 of the CPC was also dismissed for default on 10.07.2006, against which the JDR No.5 has filed a petition, which is pending before the Execution Court.

6. A perusal of the grounds urged in this Civil Miscellaneous Appeal, the appellant has been harping on the merits of the case. The appellant is challenging the impugned docket order, which discloses that counter is not filed in spite of conditional order and that there is no representation for JDR No.5. In such circumstances, a duty is cast on the appellant to explain the grounds under which he failed to file counter in spite of conditional order and also the circumstances under which JDR No.5 could not be represented before the Execution Court on 10.07.2006. However, no reasons are submitted by the JDR No.5 for his non representation before the Execution Court.

7. Apart from the above, the other crucial aspect to be considered is whether the JDR No.5 can avail the remedy of filing an appeal under Order XLIII Rules 1 and 2 of the Code of Civil Procedure against the exparte order passed in an Execution Petition. It is the contention of the learned counsel for the respondents that the impugned order cannot be challenged in a Civil Miscellaneous Appeal as it is not maintainable. In Jaswant Singh vs Parkash Kaur1, wherein, the Apex Court observed as under:

“34. The Full Bench, however, took the view that when an application under Order IX Rule 9 C.P.C. for restoration of the suit is rejected and an application is made for restoration of the application although, such application also falls within the purview of Order IX Rule 9 C.P.C., read with Section 141, Civil P.C., yet, the order rejecting the application does not fall within the Order 43 Rule 1(c) C.P.C. in as much as the subsequent application is not “for an order to set aside the dismissal of a suit”; it is for an order to set aside dismissal of the application. The Full Bench summed up its conclusion in following words: "Let it be mentioned for removal of doubt, and for making the picture complete, that when an application ('A') under Order 9, Rule 9, Civil P. C., for restoration of the suit is rejected and an application ('B') is made for restoration of the application ('A') although such application ('B') also falls within the purview of Order 9, Rule 9, read with Section 141, Civil P. C., yet, the order reje