IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5238 OF 1994 Shri.Pralhad Kisan Gilabile, Adult, Occupation Agriculturist, Residing at Charholi Budruk, Taluka Haveli, District Pune. ...Petitioner (Ori.Judg.Debtor) Versus Sri.Raghunath Narayan Tapkir, Adult, Occupation Agriculturist, Residing at Charholi Budruk, Taluka Haveli, District Pune. ...Respondent (Ori.Decree Holder) ...... Mr.Sanjay Kshirsagar for Petitioner. Mr.T.D.Deshmukh for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 4, 2009. MARCH 4, 2009. MARCH 4, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Petition takes exception to the order passed by the Executing Court on 28th June 1994 which has disposed of the Application preferred by the Petitioner praying that the regular Darkhast No.33/1977 cannot proceed in view of the subsequent : 2 : events. The regular Darkhast No.33/1977 was the outcome of the ex-parte decree passed in favour of the decree holder. It is not in dispute that the said ex-parte decree was later on set-aside. As a result of which, the Suit was restored to the file to be proceeded in accordance with law. The restored Suit was proceeded further and eventually was decreed on 22nd June 1982. After the said decree, the decree holder once again filed another Darkhast 409/1982 which, however, has been later on dismissed for default. Instead of pursuing the subsequent regular Darkhast No.409/1982 to its logical end by getting it restored, the decree holder wanted to continue with the regular Darkhast No.33/1977. It is for that reason, the Petitioner moved application (Exhibit 199). However, the Court passed impugned order below Exhibit No.1 without recording any reasons. 3. The question is: whether it was open to the decree holder to pursue regular Darkhast No.33/1977 at all. The answer is obviously in the negative. Once, the ex-parte decree on the basis of which regular Darkhast No.33/1977 came to be : 3 : filed, itself was set-aside, the said regular Darkhast could not have proceeded further at all. Rather, the Executing Court ought to have terminated the same on that basis alone. Indeed, the decree holder having succeeded to get the decree on 22nd June 1982 in the restored Suit was entitled to pursue execution action relying on the said decree. It is not in dispute that the decree holder in fact filed regular Darkhast No.409/1982 as a consequence of decree passed on 22nd June 1982. As aforesaid, the latter Darkhast came to be dismissed for default. If that Darkhast is dismissed for default, that cannot be cause for the decree holder to pursue regular Darkhast No.33 of 1977 which was instituted in anterior point of time much before the decree itself came into being. As aforesaid, the regular Darkhast No.33 of 1977 in law could not continue further after the setting-aside of the ex-parte decree. 4. In the circumstances, this Petition ought to succeed. Accordingly, the impugned order passed by the Executing Court is set-aside and instead the Application Exhibit 191 is made absolute. It is : 4 : however made clear that it will be open to the Respondent/decree holder to pursue his remedy in respect of regular Darkhast No.409 of 1982 if so advised, which will have to be decided on its own merits in accordance with law. All questions in that behalf are left open. 5. The decree holder is free to impress upon the Executing Court to finally dispose of the Execution proceedings expeditiously as the Suit pertains to year 1960. That request may be considered by the Executing Court on its own merits. A.M.KHANWILKAR, J.