- (1.) This petition is to challenge the order dated 1.3.2014 dismissing the application filed by the petitioner under Order 9 Rule 9 of the CPC for restoration of the objections filed in the execution. In short, respondent No. 2 suffered an ex parte decree on 17.1.2001. During the execution, the petitioners filed objections alleging that respondent No. 2 was not the owner of the property in dispute as he has already suffered a decree on 18.1.1996, which was later on challenged by him unsuccessfully. The objections were initially dismissed on technical ground leading to file the revision petition before this Court. During the pendency of revision petition, petitioners offered to make the payment of decreetal amount along with reasonable interest but the respondents did not agree and ultimately revision petition was allowed and the matter was remanded back to the Executing Court to decide objections on merits. The objections remained pending for two years and on one date i.e. 2S.4.2013, counsel appearing on behalf of the petitioners failed to appear and the objections were dismissed for non-prosecution. Petitioners filed application under Order 9 Rule 9 of the CPC for recalling of the order of dismissing the objections on the ground of non-prosecution but the said application has also been dismissed by the impugned order.
(2.) Learned counsel for the petitioners has relied upon a decision of the Supreme Court in the case of "Rafiq and another v. Munshilal and another, 1981 AIR(SC) 1400 to contend that the interest of the party should not suffer for misdemeanor or inaction of his counsel as the petitioner is sanguine after paying the fee of the counsel that he was watching his interest. In that case also the Supreme Court was dealing with the case which was dismissed for non-prosecution.
(3.) Learned counsel for the petitioners has also made an offer to make the entire payment with interest but learned counsel for the respondents has submitted that he has no instruction to receive the same.;