Devineni Durgamba vs Raj Kumar Financiers

T. Ranga Rao, J.—This appeal is filed against the orders dated 30-6-1994 in EA No. 489/1993 in EP No. 32/87 in O.S.No. 587/1983 on the file of the Principal Subordinate Judge, Tenali. That was a petition filed under Order 21 Rule 106 and Section 151 C.P.C. requesting to set aside the dismissal order dated 12-8-1993 in EA. No. 291/1991 and restore the same.

It appears that the properties of the appellant herein Devineni Durgamba were sold in court auction on 4-4-1991 in execution of the decree in EP. No. 32/87 and the appellant herein filed application in E.A.No. 291/91 under Order 21 Rule 89 CPC seeking to set aside the sale and the said petition was dismissed for default on 12-8-93. The appellant filed EA No. 489/93 seeking to set aside the default order and restoration of EA No. 291/91 and the said petition was dismissed on 30-6-1994.

Aggrieved by the said order, the appellant filed this Civil Miscellaneous Appeal.

On the grounds urged before me, the point that arises for consideration is whether the impugned order is unsustainable in law?

The learned counsel for the appellant submitted that the petitioner''s counsel was present and ready for enquiry and the learned Judge without giving an opportunity erroneously dismissed the petition and it is neither an order of dismissal for default nor an order on merits and hence, the impugned order is unsustainable in law.

But the learned counsel for the respondent urged that as the petitioner was dragging on the proceeding and not getting ready, the order of the trial court is very clear on that aspect and the E.P. is of 1987 and the sale was held in the year 1991, therefore, the lower court is justified in dismissing the petition. He further submitted that the very fact that the petitioner was not ready, clearly indicates that he is bent upon to drag on the proceedings and thus impugned order is passed for default. It is useful to extract the impugned order passed by the learned Subordinate Judge for appreciation of the contentions of both parties:-

"...This petition filed under Order 21 Rule 106 and 151 CPC to set aside the dismissal order dated 12-8-1993 in E.A. 291 /91. The petitioner is not ready inspite of giving several adjournments. The petition is coming up since 20-8-1993 for enquiry but the petitioner is not getting ready. The sale was held on 4-4-1991. The petitioner filed this petition on 16-8-1993 and in spite of imposing costs on the petitioner he is not getting ready. On 20-6-94 the petitioner stated that he will get ready positively to-day. In spite of his promise the petitioner is not ready. Hence, petition is dismissed without costs."

It appears from the order that the learned Subordinate Judge proceeded on the assumption that (as) the petitioner was not ready in spite of giving opportunity and assuring to get ready and dismissed the petition.

The order does not show the absence of the petitioner at the time when the matter was called and dismissed. The learned Subordinate Judge has not referred to the respective contentions of both parties and also has not given any finding with regard to the matter in dispute i.e. whether the sale can be set aside as sought by the appellant or not. Therefore, it cannot be said that the impugned order is an order passed on merits. The other alternative open to the Court is only to dismiss the petition for default. The learned Subordinate Judge observed that the petitioner was not ready. But the petitioner asserted that the petitioner''s counsel was ready to go on with the enquiry and the matter was being adjourned alongwith another E.A. filed by the 2nd Judgment Debtor to record full satisfaction.

There is no material on record to show the absence of the appellant when the matter was called and passed the impugned order. If the appellant failed to produce evidence and sought for adjournment, and if the Court declined to grant adjournment, he ought to have passed orders closing the evidence of the petitioner and posting the matter for respondent''s evidence, if any and after hearing the respondent''s counsel, he should have passed the order on merits or an order for dismissal for default but not a vague order without indicating whether the order is an order on merits or an order for default, in such a fashion. Therefore, it is difficult to sustain such a vague order and hence, liable to be set aside.

In the result, the appeal is allowed and the order of the learned Subordinate Judge is set aside and the matter is remanded to the lower court with a direction to dispose of the same within two months from the date of receipt of the order, as the matter is pending since a long time.