AI Structured Summary
Not yet generated for this judgment
Judgment
S.R. Brahmbhatt, J.—The Petitioner, against whom execution proceedings (darkasht) have been filed being Execution Application No. 521/2003, has approached this Court under Article 226 of the Constitution of India, challenging the order dated 29/7/2004 passed below exhibit-29, whereby the Petitioner requested the executing court for recalling the ex-parte order which had been passed in the first sitting, where under the court had issued jungam warrant for realising decreetal amount, and heard learned advocate for the Petitioner right on the same day as he had gathered an impression that the executing proceedings would only be taken up in the second sitting. The executing court passed order as under.
As the other side has not given consent, hence this application is rejected as order is already passed by the Court.
This Court (Coram: A.L. Dave, J) on 22/12/2004 issued rule and confirmed ad-interim relief granted earlier.
Shri. Mehta, learned advocate appearing for the Respondent while resisting this petition contended that the basic contention of the Petitioner is against the decree which is sought to be executed and if as per his contention the decree is nullity, then also, he will have to approach the court passing decree and not the executing court. However, he submitted that this Court may pass appropriate order by calling upon the Petitioner to deposit some amount.
This Court is unable to accept the submission made by learned advocate for the Respondent for the following reasons.
The order impugned indicates that the court did not of its own discretion rejected the application. The court has given reason that as the other side is not consent, the order ordering jungam warrant cannot be recalled. In my view, by passing such order the court has actually refused to exercise jurisdiction vested in it and, therefore, said order cannot be sustained. The court ought to have passed reasoned order for not accepting the application for recalling order. In my view, when the application by the objector was placed on record for recalling on the very same day, and when said application clearly indicated that the advocate for the applicant/objector was given to understand that said matter would be taken up on second half of the day, it would have been most appropriate if the order on merits had been passed on the application.
In my view, the order impugned is therefore required to be quashed and set aside and the same is accordingly quashed and set aside. Concerned trial court to hear the objection application exhibit-24 on its own merits after affording opportunity to both the sides, without being influenced by this order as well as its earlier order.
Petition is disposed of accordingly. Rule made absolute. No order as to costs.