IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 274 of 2007 Date of decision: 21.5.2008 Akash Jain and others Petitioners. Versus H.P.Financial Corporation and others Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Sanjeev Kuthiala, Advocate. For the respondent No.1. Mr. Ajay Kumar Sood, Advocate. Per Deepak Gupta, J. This petition is directed against three orders passed by the learned executing Court. A perusal of the three orders shows total non-application of mind on behalf of the executing Court. Briefly stated, the facts are that the decree holder is the H.P. State Financial Corporation (for short HPFC) advanced loans to the petitioners who had mortgaged their property for repayment of loans. The loans were not repaid in time. Thereafter, the HPFC approached the learned District Judge, Solan, under Section 31 of the State Financial Corporation Act. The matter appears to have been transferred to the Additional 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. District Judge, Solan, who vide his order dated 18.12.2002 directed sale of the mortgaged property to recover the amount due to the Corporation from the judgement debtors, who are the petitioners herein as well as from proforma respondent No.4. Execution petition was filed by the H.P.State Financial Corporation. In the said proceedings, the present petitioners were initially represented by Shri R.S.Sharma, Advocate, who appeared on their behalf on 20.3.2006. Thereafter, he did not appear and the Judgement debtors were proceeded against ex-parte vide order dated 22.4.2006 and their property was ordered to be sold vide order dated 23.6.2006. Thereafter the present petitioners filed three applications before the Executing Court. The first application, being 11 FTN/6 of 2006, was filed for recalling the order whereby property of the petitioners had been ordered to be put to sale. The second application, being 12 FTN/6 of 2006, was filed for setting aside the order whereby the judgement debtors had been proceeded against ex-parte. By means of the last application, being 13-FTN/6 of 2006, the petitioners filed objections under Section 47 read with Order XXI Rule 59 of the Code of Civil Procedure. Two of these applications were disposed of by the learned Executing Court, i.e. Fast Track Court, Solan on 27.10.2007, while issues were framed in one application. In the first application, the learned executing Court held that the Judgement-debtors had been proceeded against ex-parte on 22.4.2006 and thereafter their property had been ordered to be sold on 23.6.2006 and there is no valid reason for recalling the said order dated 23.6.2006. In the second application, i.e. 12 FTN/6 of 2006 he framed an issue as to whether there are sufficient grounds for setting aside ex-parte order against the JDs and fixed it for evidence. As far as the third application i.e. the objections to the execution are concerned, the Court held that since the judgement debtors had been proceeded against ex-parte, no objection petition could be filed and thus rejected the objection petition without considering the same on merits. To say the least, the learned executing Court has totally mis-appreciated and mis-conceived the provisions of law. Once it had framed an issue on the application as to whether the ex-parte order was liable to be set-aside or not, it could not have disposed of the other applications. The order whereby the judgement- debtors/petitioners were proceeded against ex-parte was the first contentious order passed in the matter and that was the order which went to the root of the matter. Without deciding the question whether the ex-parte order should be recalled the learned executing judge could not have held that the sale must take place and that the objections were not maintainable, that too on the ground that the petitioners had been proceeded against ex-parte. Even otherwise, it is a settled principle of law that even a party which had been proceeded against ex-parte can later join the proceedings at any stage and can file applications. The objections filed at the later stage could not have been rejected solely on the ground that since the judgement-debtors had been proceeded against ex-parte the objections did not lie. This could not have been done, especially in the present case, when the question as to whether ex-parte order was to be re-called or not was still pending before the trial Court. Therefore, the two orders passed in 11 FTN/6 of 2006 and 13-FTN/6 of 2006 cannot be sustained and are liable to be set aside. I have considered the matter in great detail and feel that instead of wasting time of the Executing Court in recording evidence on the issue as to whether the exparte order should be set aside or not and delay the matter further it would be better to set aside the ex-parte order. The petitioners had admittedly engaged counsel to represent them and cannot be punished for the absence of their counsel. The order dated 22.4.2006 whereby the petitioners were proceeded against ex-parte is accordingly set-aside. The petitioners are permitted to join the proceedings especially in view of the fact that the property has still not been sold. Consequently, the orders dated 27.10.2007 in 11 FTN/6 of 2006 and 13-FTN/6 of 2006 are set aside. The objections filed by the petitioners shall be heard and decided on merits by the learned executing Court as early as possibly but not later than 15th September, 2008. The property of the judgement- debtors shall not be put to auction till the objections under Section 47 CPC are decided. With the aforesaid directions this petition is disposed of. Parties are directed to appear before the executing Court on 17th June, 2008. 21st May, 2008 (Deepak Gupta), J. ™