IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) WRIT PETITION NO. 3} S?> [2003 / Vidyadhar Mishra, son of Shri ’ Satyadev Mishra, Bhashkar Mishra, aged about 15 years. Diwakar Mishra, aged about 13 years. Sudhakar Mishra, aged about 11 yeas PETITIONERS 1 . S1.No. 2 to 4 are minors through : their natural guardian father i.e. petitioner No. 1., A11 are resident of Station Road, Raipur (Chhattisgarh) VERSUS ESPONDENT Mohan Lal Chouhan, son of Shri Narsingh Chouhan, resident of 749 MPHB Colony, tilak Nagar', Gudhiyari, Distt. Raipur (Chhattisgarh) (r WRIT PETITION UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN THE NATURE OF MANDAMUSICERTIORARI, ORDERlORDERSz DIRECTION / DIRECTIONS PROHIBITION ETC. 01) PARTICULARS ABOUT THE PETITIONER: As per cause title. O2 PARTICULARS ABOUT THE RESPONDENTS: As per cause title. R / ) XI-HC~78 wxvgkgz/ mwm m 2QQ3 31% m (W3) Wwm§wm $aé’fcmm WWW 1541,2003 Shri P.P. Sd'w, aounsel for 'rhe petitioners. ‘ By this wrif petHion mdcr Amide 227 of the Consfitufion of India, ‘l'he petitioner has challonged the er dated 14.07.2003 passed by the XI Civil Judge, Class-II, Roipur, by ch the ieomed Civil Judge has ollowcd the application filed by the re nt herein to stay the execution in the eviction proceedings. The case of the petitioner is that the father of petitioner No.1, Landlord, filed a civil suit against respondent for eviction from house No.18/80 on the ground of default Le. nompwment of rent «dab-letting part of the premises, in the yew 991 and smon of the suit was isaied. The respondent filed written tenient aid after fruiting issues. respondent remained «latent. The fore, the suit was proceeded ex-parte. The learned trial Court after ng the evidence of the pldntiff decreed the suit in favour of the mdlord on 27.11.2001. Thereafter, the petitioners moved an application f i execution of the decree and the notice of the execution was issued, but thp‘t could not be served on the respondent. In the meanwhile, the respondent ’erein filed an application under Order 9 Rule 13 read with Section 151 of thie Code of Civil Procedure, on 08.05.2002 for setting aside the ex-pwte de ree. Even during the pendency of that application the petitioners moved m application that the mspondent is destructing the house as well as o properties ul luched to the howe and even the respondent has also cut e trees and damaging the house. The nemadentolso-filedm-opplication under section 151 of_the CPC inethJe ”-7“ 3".“ 5 W d ' s e a r i Thereafter, raspondem moved appiication in fhe executing procaedings' and execution proceedings is pending and I'm been stayed md the application filed by the responde for setting aside the ex-parte decree is not being decided by the learn trial Court and more than one md half years he elapsed. Thereafter, the petitioners are not able to reap the fruits of the decree and they being prevented to execute the decree by innocuous procedure adopted by ge Court below. I have perused the impug i- c order in which the learned Civil Judge has observed that if the ex on proceedings we not stwed, then the application filed by the respon under Order 9 Rule 13 of the CP.C. will become meaningless, therefore the execution proceedings we stayed. There is no doubt, in such a sit w ion the order passed by the lewned Civil Judge staying the execution be said to be without jurisdiction or illegal but, at the me time, the earned Civil Judge must corsider the other aspects of the case that aftert years, the decree wx med against the respondent that too, the re nt‘remained present md after filing of the written statement he remned M and the Court proceeded ex- e i d s r e XimHC—m mmw‘?@l?3 W 2603 amtm (We) mmamm > Z media e: mat aif‘ae a‘ 31m few? execution procee ings or stay: R e ex ~ ion. e r i I stayed the execution proceeding, till the decision of the application, by the impugned order. I have heard the lwned - w nsel for the petitioners. Learned coutsel for the l titioners sibmitted that ex-parte decree was passed on 27.11.2001, whe' - 1 a the respondent filed an application mder Order 9 Rule 13 of the CP.C. on M £53002 i.e. after more than six months. parte, and offer six months he had for sefhng wide the decree md wen thaf applica‘fian is pending for c dermg before the ma! Court since la? more than one md half yews a the petifianers are baing deprivad from reaping 1‘he fruits of the decree an accom‘i of the luify on the pw't of'the subordinate Court Looking to e facts aid circumstonues of the case the [earned Ciwl Judge ought to ove decided the application filed by the respondent under Order 9 Rule 13 of the C.P.C. expeditiously, so that the fate of the piain‘tiffs was deci one way or the other. e In View of the wove :ircumstonees, mile dismissirg the writ petition, the learned Civil Judy is directed to decide the application filed hy the respondent under Order 9 Rule 13 of the C.P.C. a expeditiously as possible, but not later than months from today. With the above observétions md directions, the petition stmds disposed of. Consequently M (W y 2831/2003 and I A No 9297/2003 also stand disposed of. Parties are entitled for rtlfied copy of this / so Soma BHADO L mam-$:Whammewh ms;wmwe“”en—me.n.ee:,eeewNM‘M_—ew.w new. 7,7; .7» Mme”. “some. emceammt. emmm