Pritam Kaur vs State Bank of India and Another

L.N. Mittal, J.—Pritam Kaur defendant no. 2/judgment debtor no. 2 has filed this revision petition under Article 227 of the Constitution of India assailing order dated 7.1.2012 Annexure P/1 passed by the executing court and order dated 29.2.2012 Annexure P/2 passed by the trial court. Suit was filed by respondent no. 1-State Bank of India against Paramjit Singh respondent no. 2 as defendant no. 1 and petitioner Pritam Kaur as defendant no. 2. The said suit was decreed vide judgment and decree dated 8.11.2007. Respondent no. 1 has filed execution petition for executing the said decree. In the execution proceedings, the petitioner filed application for staying of the execution proceedings on the ground that she had already filed application under Order 9 Rule 13 of the CPC (in short, CPC) for setting aside the ex parte judgment and decree passed against her. The said stay application has been dismissed by the executing court vide order Annexure P/1.

The petitioner also filed application for stay of the execution proceedings in petition filed by her under Order 9 Rule 13 CPC. The said stay application has been dismissed by the trial court vide order Annexure P/2.

I have heard counsel for the parties and perused the case file.

In so far as order Annexure P/1 is concerned, it cannot be said that there is any perversity, illegality or jurisdictional error in the said order because execution proceedings could not be stayed by the executing court merely because the petitioner had filed separate application under Order 9 Rule 13 CPC.

However, in so far Order Annexure P/2 is concerned, the trial court has dismissed the petitioner''s application for stay of the execution proceedings on the ground of order Annexure P/1 passed in the execution proceedings. However, the trial court while seized of the petitioner''s

application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree was supposed to decide independently the petitioner''s application for staying execution proceedings on the well established principles of prima facie case, balance of convenience and irreparable loss and injury. The trial court has, however, not adverted to the same and dismissed the stay application on the ground of order Annexure P/1 only.

In these circumstances, I find that order Annexure P/2 passed by the trial court suffers from illegality and jurisdictional error. Resultantly, the instant revision petition is allowed partly. Order Annexure P/2 passed by the trial court is set aside. The trial court is directed to decide afresh in accordance with law, petitioner''s application for stay of the execution proceedings. The trial court shall decide the petitioner''s stay application within three months from today. Meanwhile, sale of the land of JD (if made) shall not be confirmed.