ORDER
S.C. Mohapatra, J.
1. Judgment-debtor is the petitioner in this Civil Revision under Section 115, C.P.C.
2. Judgment-debtor filed a suit for money. Decree-holder filed a cross claim for accounts. Suit was disposed of in the year 1964 decreeing the claim of the judgment-debtor and passing a preliminary decree for accounts. Final decree was passed in 1977. On the basis of the final decree, decree-holder filed Execution case which was registered as Execution Case No. 37 of 1979 which was subsequently numbered as Execution Case for realisation of the decretal dues in the decree in his favour. On 1-8-1980 petitioner filed an application for adjustment of the dues against him with the decretal amount for which he filed the execution application. Decree-holder filed objection to such a petition. Since the execution case filed by the petitioner was posted to 24-9-1980, this application was also posted to the said date. When the case was adjourned from one date to the other, Execution case was to be heard by the Subordinate Judge, 1st Court since 2-1-1981 which was numbered as Execution Case No. 33 of 1981. Execution case of the petitioner was also numbered as Execution Case No. 39 of 1981. On 12-3-1981 the petition was heard and was posted to 16-3-1981 for orders along with Execution Case No. 39 of 1981.
Opposite Party filed an application in Execution Case No. 39 of 1981 that the decree is no more executable being barred by limitation. Said application not being favourably considered, opposite party filed Civil Revision No. 568 of 1981. Application of the petitioner dated 1-8-1980 with objection was therefore, kept pending awaiting order in Civil Revision No. 568 of 1981 which was disposed of on 9-5-1985 setting aside the order of the Executing Court with a direction to reconsider the matter. This order was received by the Executing Court on 20-5-1985 in Execution Case No. 39 of 1981. Prior to it, on 3-5-1985, Execution Case No. 33 of 1985 which was not a date fixed, order was passed that the order in Civil Revision had been received in Execution Case No. 39 of 1981 and accordingly, the objection was to be heard on the date fixed. On 19-7-1985 which was the date fixed, case was adjourned to 22-7-1985 and that day it was fixed to 2-8-1985. Since judgment-debtor-petitioner did not appear on repeated calls, argument of decree-holder was heard in part and was posted to 5-8-1985 for further hearing. Again he was heard in part and the case was posted to 16-8-1985 for further hearing. On 16-8-1985 it was finally heard when the petitioner did not appear on repeated calls and was posted to 24-8-1985 for orders. That day executing Court passed the following orders :
“DHr. is present. It is necessary to hear the advocate for the JDr. Hence intimate him and put up on 4-9-1985 for further hearing.”
On 4-9-1985 advocate for the judgment-debtor (petitioner) not being available and absent on repeated calls, order was reserved to 10-9-1985. On 17-9-1985 when the matter was posted for orders, decree-holder further argued on question of law and on 28-9-1985 order was passed rejecting the application dated 1-8-1980 and decree-holder was directed to take steps for issue of writ of attachment for which execution case was posted to 10-10-1985. On 16-11-1985, notice of valuation of property to be sold was issued. On 12-2-1986, judgment-debtor prayed for time to obtain order of stay from this Court. On 25-3-1986, petitioner filed an application in Civil Revision No. 568of 1981 for directing the Executing Court to hear the question of maintainability of Execution Case No. 39 of 1981 afresh after recalling its order dt. 28-9-1985 since Advocate for the decree-holder (opposite party in Civil Revision) could not be present on the date of hearing of Civil Revision in which Executing Court was directed to dispose of the matter by 31-10-1985 and parties were directed to appear in the Executing Court on 25-6-1985. On 24-8-1985, Executing Court directed to intimate the Advocate of the decree-holder but no intimation was given to the Advocate before hearing the question on 17-9-1985. For the first time, he came to know of the dismissal of the Civil Revision and about the dismissal of the execution case and thereafter applied for certified copy. The said application was permitted to be withdrawn on 16-4-1986. On 17-4-1986, petitioner filed an application in the Execution Case for amendment of the decree which was registered as Misc. Case No. 179 of 1986 in Execution Case No. 31 of 1981 which was dismissed on 27-7-1986. On 3-5-1986, the petition out of which the impugned order arises was filed by the petitioner which is purported to be under Section 151, C.P.C. essentially for recalling the order dated 24-8-1985 and to hear the petition dated 1-8-1980 afresh. This application having been dismissed on objection of the decree-holder, present Civil Revision has been filed. Further proceeding in Execution Case was stayed subject to deposit of Rs. 10,000/- by the petitioner. The same has not been complied with.
3. Decree holder-opposite party has appeared in person on 12-3-1987. He submitted that he is filing an application for review against the decree in First Appeal where he had assailed that part of the decree which was against him. Accordingly, I directed this Civil Revision to be put up with said application if filed. Since Mr. H. K. Agrawalla, Advocate denied to have received any intimation as per the order of the Executing Court dated 24-8-1985 which was challenged on 25-6-1987 by the opposite party, I directed the Executing Court to make an enquiry. After receipt of the report, I admitted the Civil Revision on 25-8-1987. On 24-8-1987, opposite party filed an affidavit that I was his greatest enemy which fact he stated on affidavit in Civil Revision No. 7 of 1987 praying not to hear any of his and his family matters. It was alleged that T have done maximum hard and injustice in First Appeal No. 17 of 1977 and Civil Review No. 7 of 1987 and passed an order for enquiry which proved that I am out to help the petitioner and Executing Case No. 16 of 1979 having been dismissed one year before as not maintainable, it further proves that I am openly helping the petitioner for the reasons best known to me. It was stated that the enquiry was directed after my request to him to agree for restoration of the Execution Case on payment of Rs. 2,000/- as costs was not agreed to by him since there was neither any appeal or revision against the said order. In the affidavit, he stated :
“I may further submit that I shall not submit any thing nor shall he argue any in my cases before your Lordship as such it is upto your Lordship to do what your Lordship deem fit and proper”.
On 28-11-1989 opposite party filed another affidavit in Court in continuation to the affidavit dated 24-8-1987. He stated that during pendency of the Revision, he filed an appeal in the Supreme Court against the judgment and decree in First Appeal No. 17 of 1977. In the said special leave petition he filed an application for contempt against me. Supreme Court accepted the allegation made against me and passed order “No orders on contempt petition”. It was further asserted that in the morning hour of that day he mentioned not to take up the matter in view of the aforesaid circumstances but I said “No” “I will take it up.” Opposite party relied upon a series of decisions tabulated in the said affidavit. With that it was asserted.
“That it is again prayed as such this Honourable Court should not hear the matter. On 13-12-1989, Civil Revisions was listed in my chamber for hearing on memorandum filed by petitioner. Opposite party appeared in person in my chamber and brought to my notice that the condition for deposit of Rs. 10,000/- for stay of execution has not been complied with. Accordingly, I declined to hear the matter in chamber expeditiously since the order was not complied with. On 16-12-1989, petitioner again filed a memorandum for listing the matter since I directed the matter to be listed when I sit single. On 18-12-1989, I heard the Civil Revision in part and on 21-12-1989, after hearing in part, I directed the matter to be listed after winter holidays. On 2-1-1989, opposite party prayed the matter to be adjourned for one day. Opposite party fully participated in the hearing despite his two previous affidavits and made submissions for about half an hour on merits of the case.
4. Undisputably in the same suit plaintiff petitioner got a decree for money and defendant opposite party got a preliminary decree for accounts which having terminated in final decree, Execution was filed by him while challenging the final decree for more benefits. Petitioner filed an execution proceeding which was challenged by opposite party as barred by limitations. Petitioner filed an application for adjustment of the decretal amount and the said application has been dismissed. Question is whether the executing Court exercised jurisdiction with material irregularity in refusing to recall the order in exercise of the inherent power.
5. Executing Court refused to exercise its inherent power on the ground that Execution Case No. 16 of 1979 renumbered as Execution Case No. 39 of 1987 has been dismissed as not maintainable even if it is assumed that petitioner was not present when the same was dismissed. Main ground for recalling the order is that executing Court directed to intimate the petitioner’s Advocate before passing the order on his petition dated 1-8-1980, and without intimating him, final order was passed. Executing Court ought to have considered the merit of such ground. Failure to consider the basis on which petition was filed to recall the order amounts to material irregularity in exercise of jurisdiction and on this short ground, the impugned order is liable to be set aside.
6. On setting aside the order, question becomes material whether the executing Court would be directed to consider the question afresh or I shall consider the same since no new material has been sought to be introduced. I am inclined to hold that I shall decide the question in this Civil Revision since all material are available on record.
7. There can be no doubt that the executing Court having felt that Advocate for the petitioner is required to be heard before passing the order, he should have intimated him before passing the order. On my direction enquiry has been made and case of opposite party that he intimated the Advocate for the petitioner has not been accepted and it is reported that no intimation has been given. But that would not affect the position in any manner.
8. Execution case was being posted from day to day for consideration of the petition dated 1-8-1980 awaiting order in Civil Revision No. 568 of 1981. Order No. 143 dated 25-6-1985 indicates that copy of order in Civil Revision No. 568 of 3981 was received. That was not a date fixed. Accordingly, executing Court directed the matter to be put up on 19-7-1985 which was the date fixed for hearing the objection. If the petition would have been heard on 19-7-1985, petitioner could not have made any grievance since the date was known to the petitioner both from the order sheet as well as the cause list published by the Court. That day also it was not heard and the matter was being adjourned till 2-8-1985 when decree holder was heard in part. On 16-8-1985 to which date ultimately, the executing was posted, petitioner was absent and on hearing the opposite party order was reserved to be delivered on 14-8-1985. When petitoner did not take part in the hearing, there was absolutely no justification for the executing Court to direct the office to intimate the Advocate that he is required to be heard in the matter. This is not a requirement of the principle of natural justice. It is also not the provision in either Code of Civil Procedure or the General Rules and Circular Orders (Civil) of this Court. Where a matter is not posted to a date fixed, natural justice may demand intimation to the party or his Advocate in case an order to his prejudice is proposed to be passed. When a party has not taken part in a proceeding, no intimation is necessary to him. In any case, 24-8-1985 was a date fixed which is supposed to be known to the petitioner. If he would have taken care, he would have known that the matter has been posted to 4-9-1985 for giving him a chance of being heard. That day also he did not appear. His application in the Civil Revision to get a chance of being heard in Execution Case No. 39 of 1981 has been withdrawn. In the circumstances, order dated 28-9-1985 rejecting his application dtd. 1-8-1980 for adjustment of his decretal amount does not violate the principle of natural justice. His application for recalling the order dated 28-9-1985 in exercise of the inherent power has accordingly no merit since petitioner is guilty of laches and exercise of inherent power in his favour is not called for. Accordingly, I am not inclined to interfere with the impugned order.
9. Mr. Agrawalla submitted that on merits applications dated 1-8-1980 could not have been dismissed in view of clear provision under Order 21, Rule 9, C.P.C, and the principles laid down in AIR 1915 Bom 226 (Madapps Gammpa Hegde v. Jaki Ghosal Gabri Ghosal), AIR 1941 Mad 662 (Maruthu Vamalai Moopunar v. Avatsiachi) and in (1959) 1 OJD 368 (Raja Sri Chandrabhanu Dev v. Digambar Nath) of this Court. Opposite party on the other hand submitted that the decree sought to be executed by the petitioner is dated 9-3-1964. He filed several execution cases such as 12 of 1971, 11 of 1972, 139 of 1973, 42 of 1978 which were all dismissed. Lastly he having filed Execution Case No. 16 of 1979 which was resisted by him on the ground of being barred by limitation. In any case, execution case No. 16 of 1979 has been dismissed as barred by limitation and the said order has become final without being assailed in any forum. Thus, claim of the petitioner against opposite party is no more available to be executed and as such, Order 21, Rule 19, C.P.C. is not attracted to the present case. Since, I am not entertaining the application to recall the order, I need not examine this question.
10. Before closing, I may observe that opposite party is not fair in his conduct in this Civil Revision, Place the matter before Hon’ble the Acting Chief Justice for considering the conduct of opposite party in this Civil Revision in taking part initially filing of affidavit which have no basis and ultimately taking part in the hearing of the Civil Revision.
11. In the result, Civil Revision is dismissed with costs.
