Case Note & Summary
The petitioner, Sanjeev Doddamani, was the plaintiff in O.S.No.570 of 2022 filed for recovery of money. The suit was decreed ex-parte against the respondent-defendant. The petitioner then filed Execution Petition No.17/2023 before the Senior Civil Judge and JMFC, Navalagund. During the execution proceedings, the petitioner filed IA No.III under Order 21 Rule 29 of the Code of Civil Procedure, 1908 (CPC) seeking stay of the execution. The execution court dismissed IA No.III for default on 09.01.2025 due to the petitioner's absence. Aggrieved, the petitioner filed the present writ petition under Articles 226 and 227 of the Constitution of India seeking to quash the impugned order and to restore the application. The High Court observed that dismissal for default is not a decision on merits and the petitioner should not be precluded from seeking stay. The court set aside the impugned order, restored IA No.III to file, and directed the execution court to dispose it of within two months. Notice to the respondent was dispensed with as the order was in his favour.
Headnote
A) Civil Procedure - Execution - Stay of Execution - Order 21 Rule 29 CPC - Dismissal for Default - The petitioner filed IA No.III under Order 21 Rule 29 CPC seeking stay of execution proceedings. The execution court dismissed the application for default due to the petitioner's absence. The High Court held that dismissal for default does not amount to a decision on merits and the petitioner is entitled to file a fresh application or seek restoration. The impugned order was set aside and the application was restored to file. (Paras 1-5)
B) Civil Procedure - Execution - Stay of Execution - Order 21 Rule 29 CPC - Restoration - The High Court directed the execution court to restore IA No.III to its original number and dispose it of in accordance with law, preferably within two months from the date of receipt of the order. (Para 5)
Issue of Consideration
Whether the execution court was justified in dismissing IA No.III filed under Order 21 Rule 29 CPC for default when the petitioner was absent on the date of hearing, and whether such dismissal amounts to a final adjudication barring a fresh application.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 09.01.2025, restored IA No.III to file, and directed the execution court to dispose it of in accordance with law, preferably within two months from the date of receipt of the order.
Law Points
- Order 21 Rule 29 CPC
- Stay of execution
- Dismissal for default
- Restoration of application
- Civil Procedure Code
- 1908
Case Details
2025 LawText (KAR) (02) 44
WP No. 101319 of 2025 (GM-CPC)
Sri. Sanjeev S/o. Shankarappa Doddamani
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order of the execution court dismissing an application for stay of execution for default.
Remedy Sought
Petitioner sought a writ of certiorari to quash the order dated 09.01.2025 passed by the Senior Civil Judge and JMFC, Navalagund in EP No.17/2023 on IA No.III filed under Order 21 Rule 29 CPC, and to restore the application.
Filing Reason
The execution court dismissed IA No.III for default due to the petitioner's absence on the date of hearing.
Previous Decisions
O.S.No.570 of 2022 was decreed ex-parte against the respondent. Execution Petition No.17/2023 was filed. IA No.III under Order 21 Rule 29 CPC was dismissed for default on 09.01.2025.
Issues
Whether the execution court was justified in dismissing IA No.III under Order 21 Rule 29 CPC for default when the petitioner was absent.
Whether dismissal for default amounts to a final adjudication barring a fresh application or restoration.
Submissions/Arguments
Petitioner argued that the dismissal for default was not on merits and the application should be restored.
Ratio Decidendi
Dismissal of an application for default does not amount to a decision on merits; the applicant is entitled to file a fresh application or seek restoration of the dismissed application. The court should not preclude a party from seeking stay of execution merely due to absence on a single hearing date.
Judgment Excerpts
Notice to respondent is dispensed with in view of the proposed order to be passed.
The petitioner was the plaintiff in O.S.No.570 of 2022 filed for recovery of certain amount.
The suit came to be decreed ex-parte.
The petitioner filed EP No.17/2023 and also filed IA No.III under Order 21 Rule 29 CPC.
The said IA came to be dismissed for default on 09.01.2025.
The dismissal of an application for default would not amount to a decision on merits.
The petitioner would be entitled to file a fresh application or seek restoration of the dismissed application.
The impugned order is set aside. IA No.III is restored to file.
The execution court is directed to dispose of IA No.III in accordance with law, preferably within two months from the date of receipt of this order.
Procedural History
O.S.No.570 of 2022 was filed by the petitioner for recovery of money. The suit was decreed ex-parte. The petitioner filed Execution Petition No.17/2023. During execution, the petitioner filed IA No.III under Order 21 Rule 29 CPC seeking stay. The execution court dismissed IA No.III for default on 09.01.2025. The petitioner filed the present writ petition on 27.02.2025 challenging the dismissal order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 21 Rule 29
- Constitution of India: Article 226, Article 227
