1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 23/2011 PRAKASH BALBHIM GANGARDE VS. SUBHASH RAMCHAND BHANDARI Mr. S.L. Bhapkar, Advocate for appellant. Date : 28th January, 2011 PER COURT : 1 The appeal from order is not maintainable. 2 The application on which the impugned order was passed was itself was not maintainable before the execution Court and further was not maintainable in the execution proceeding. 3 The applicant apparently is an unfortunate person. In 1992 while he was a minor, a decree for possession was passed against him. In the plaint of the suit, he was admittedly shown to be a minor but his father was made his next friend. Unfortunately, the applicant’s father did not oppose suit and the suit was decreed ex-parte in 1992. The Decree holder initiated execution proceeding. In 1994, a warrant for possession was issued but it came back with a report that the judgment debtor was a minor person. The learned judge who presided over execution Court then in 1999 appointed the Nazir of the Court as the next friend of the judgment debtor. The execution however did not proceed further. In the mean time, in 2001 the applicant became major. The Decree holder thereafter in 2008 applied to the Court for re- issuance of possession warrant. Soon thereafter in September, 2009 the applicant appeared before executing Court and made the present application. He probably erroneously assumed that the execution Court is the original court also. He made the present application for setting aside of the ex-parte decree passed in the 2 suit. The Court rejected this application saying that the same was maintainable before the executing Court. I find nothing incorrect in this order. The legal advisor to the applicant I think, committed a grave error in making present application before execution Court. He should have advised the applicant to make an application under Order IX Rule 13 of C.P.C. For setting aside of the exparte decree before the trial court. He should have advised his client to further make an application for stay to the execution of the decree. Having regard to the facts of this case, probably the trial Court would have stayed the execution of the decree and would have decided the application, for setting aside of the decree on the basis of facts and circumstances. Instead of taking such steps, as said above, the applicant was wrongly advised to go before the execution Court. 4 Although I am dismissing the appeal from order, I think, I should help the applicant in keeping the execution of the impugned decree stayed for few days so that he would avail better advise and go to the proper Court. ORDER a) The appeal stands dismissed. However, the execution Court is directed not to execute the decree till 28th February, 2011. b) Civil application No. 906/2011 stands disposed of. [A.V. NIRGUDE, J.] ts k/ ok