Onkar Chand and Others vs Sh. Ganesha and Others

Deepak Gupta, J.—By means of this petition, the petitioners have laid challenge to the order passed by the learned Civil Judge, (Junior Division) Court No. 2, Palampur dated 20.8.2004 whereby the petitioners have been directed to be detained in civil imprisonment for a period of ten days on the ground that they have disobeyed the decree passed by the learned Trial Court.

It is not necessary to give the detailed facts of the case because the only question which is involved in this petition is that whether the petitioners were correctly proceeded against ex party in execution proceedings or not.

Admittedly, the address given in the execution proceedings was the same address which was given in the judgment of the learned Trial Court. A party is expected to file an address form in the learned Trial Court in terms of Order 6 Rule 14-A, CPC. If a party changes his address, it should inform the Court about the change of its address. Be that as it may, the facts as emerge from the record are that the petitioners- judgment debtors in the execution proceedings were not served at the address given and in fact, the report of the Process Serving Agency was that this is not the correct address. The learned Trial Court gave a number of opportunities to the decree holders to file the correct addresses of the judgment debtors but this was not done and on the other hand, an application for service of the judgment debtors through publication was filed and after publication, they were proceeded against ex parte. Thereafter, an order was passed directing that the petitioners be detained in civil imprisonment. This order was challenged by the judgment debtors by filing an appeal which was held to be not maintainable and, therefore, now this order has been challenged by means of filing the present petition. The main ground taken is that the petitioners were wrongly proceeded against ex parte.

Sh. Dushyant Dadwal, learned Counsel for the respondent No. 1 has drawn my attention to the fact that even in the appeal filed by the petitioners before the learned Lower Appellate Court, the same address was given. He points out that even now the permanent address of the petitioners No. 1 and 2 is the same as was given in the learned Trial Court. Be that as it may, I feel that an order of civil detention of any party should not be passed without giving that party an opportunity of putting forth its case. A decree has been passed in favour of the respondents-decree holders and they are definitely entitled to the fruits of such decree. In case, the petitioners-Judgment debtors have disobeyed the decree, they must be dealt with strictly in accordance with law. However, the judgment debtors should be given an opportunity to show that they have not violated the law.

Therefore, keeping in view the aforesaid facts, I set aside the order of the learned Trial Court and direct that judgment debtors shall file objections, if any, on or before the next date fixed for hearing before the learned Trial Court. In case any objections are filed by the judgment debtors, the reply to the same shall be filed by the decree holders within 15 days. Issues if required shall be framed on the next date and the petitioners-judgment debtors shall lead their entire evidence, if any, within two months thereafter. Thereafter, the decree holders shall be given one month''s time to produce their evidence, if any, and within one month thereafter, the learned Trial Court shall dispose of the Execution Petition.

The parties through their counsel are directed to appear before the learned Trial Court on 20th December, 2010. In case no objections are filed on or before 20th December, 2010, it shall be presumed that the judgment debtors do not intend to file any objection against the decree. The Registry is directed to ensure that the record of the learned Trial Court is sent back so as to reach well before the next date. No order as to costs.