C.R. N.7424 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.R. N.7424 of 2009 (O&M) Date of Decision:15.12.2009 Kartar Singh and others .....Petitioners Vs. Karam Chand .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Satbir Rathore, Advocate for the petitioners. **** HARBANS LAL, J. This petition has been moved by Kartar Singh, Hari Krishan and Gian Chand under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure for quashing impugned order dated 26.2.2008 passed by the learned Additional Civil Judge (Senior Division) Dasuya and proceedings taken thereon being ex-parte and for the issuance of a direction to the learned Executing Court to decide the application under Order 21 Rule 32 of the Code of Civil Procedure filed by the respondent afresh after hearing the petitioners. Learned counsel for the petitioners has strenuously urged that a glance through Annexure P.3/T affidavit of Brahm Dass Chowkidar would reveal that therein he has solemnly affirmed that the munadi was not effected by him in Village Heer Beh, Tehsil Mukerian, District Hoshiarpur C.R. N.7424 of 2009 (O&M) -2- and that being so, it cannot be said that the petitioners had the opportunity to obey the decree. I have well considered this submission. In paragraph No.4 of the petition, the zimni orders recorded by the learned Executing Court have been reproduced in verbatim. The relevant one reads as under: “Respondent no.1 and 3 served through munadi. Case called several time. None has appeared on behalf of respondent no.1 and 3. It is already 3.30 PM. Hence respondents proceeded against exparte. For Aws file be put up on 11.2.05. As per this order, respondents No.1 and 3 have been served by way of munadi, whereas Brahm Dass Chowkidar in his affidavit Annexure P.3/T has stated in candid terms that “I had not done any munadi in the Village Heer Beh, Tehsil Mukerian, Distt. Hoshiarpur in the abovesaid case.” This affidavit purports to have been attested by the Executive Magistrate, Talwara on 7.12.2009. In re: Rohtas and others v. Bakhtawar, 1990 Punjab Law Reporter 297, while discussing the scope of Order 21 Rule 32 of the Code of Civil Procedure, this Court has observed that before proceeding with execution application under Order 21 Rule 32 of the Code of Civil Procedure, the court must come to the conclusion that the judgment debtor has an opportunity to obey the decree and he has wilfully failed to obey it. It is only after that the decree may be enforced, as provided therein. In view of the affidavit Annexure P.3/T referred to above, the impugned order is set aside with a direction to the Executing Court to decide the matter afresh by taking into consideration the aforesaid affidavit. C.R. N.7424 of 2009 (O&M) -3- If deemed appropriate, the Executing Court may call Brahm Dass Chowkidar and examine him on oath. If the petitioners opted to lead evidence in rebuttal, an opportunity shall also be afforded to them. Disposed of accordingly. December 15, 2009 ( HARBANS LAL ) renu JUDGE