JAGDISH PANDEY Vs. URMILA PANDEY AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 22.7.2013 and order dated 4.1.2014 in Execution Case No. 7 of 2012, the present writ petition has been filed. Title (Partition) Suit No. 15 of 2000 was filed by one Ramjee Pandey for 1/5th share in the suit schedule property. A preliminary decree was prepared on 7.3.2002 and the final decree was prepared on 17.5.2002. The father of the present petitioner was defendant No. 1 in the said partition suit. The father of the petitioner died on 26.11.2003. The plaintiff filed Execution Case No. 97 of 2002 which was dismissed in default on 14.1.2006. In the meantime, a compromise agreement was executed. One of the co-sharers against whom an ex-parte decree was passed, filed application under Order IX, Rule 13 CPC however, the same was dismissed in default. Some of the other co-sharers filed Misc. Case No. 21 of 2013 for setting-aside the ex-parte decree, and the said case has been admitted for hearing. The substituted plaintiffs filed second Execution Case bearing Execution Case No. 7(158/12) of 2012, in which order dated 22.7.2013 was passed against the judgment-debtor Nos. 2, 3, 5, 7 & 9 and the execution proceeded ex-parte against the said judgment-debtors. The petitioner is judgment-debtor No. 3. The petitioner appeared on 19.8.2013 and filed petition for recalling order dated 22.7.2013 however, the same has been dismissed vide order dated 4.1.2014.

(2.) Heard the learned counsel for the parties and perused the documents on record.

(3.) Mr. Rajiv Ranjan, the learned counsel for the petitioner submits that without following the procedure under Order V, Rule 19 CPC, the Execution Case was set for ex-parte hearing against the petitioner on 22.7.2013. After the parties compromised the matter, the petitioner had no inkling of filing of the second Execution Case. Since the summons were never served upon the petitioner, the petitioner could not appear in Execution Case No. 7(158/12) of 2012, however, after coming to know about Execution Case No. 7(158/12) of 2012, the petitioner promptly appeared and filed application dated 19.8.2013 seeking recall of order dated 22.7.2013.