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Om Prakash Saxena v. Brajesh Kumar Saxena And Another - WRIT - A No. 17915 of 2006  RD-AH 7049 (31 March 2006)
Court No. 28.
CIVIL MISC.WRIT PETITON NO. 17915 OF 2006
Om Prakash Saxena
Brajesh Kumar Saxena & anr.
Hon'ble Krishna Murari, J.
The challenge in this writ petition has been made to the order dated 25.5.2005 passed by executing Court rejecting the application filed by the petitioner for summoning the process server and Sri B.R. Singh, Advocate for recording their statements and cross-examination and order dated 17.2.2006 passed by rivisional court dismissing the revision challenging the order of executing court.
The facts are that SCC suit No. 377 of 2001 for ejectment and recovery for arrears of land filed by the respondent/ land lord was decreed ex-parte on 13.2.2004 by Judge, Small Causes Court, Kanpur Nagar. The said decree was put into execution, which was registered as execution case No. 69 of 2004. The petitioner filed an objection under Section 47 of C.P.C. on the ground that he was never served with any notice or summon of said suit and his signatures were forged on the summon, and the decree was obtained by fraud. During the pendency of the execution proceedings the petitioner moved another application for summoning the process server and Sri B.R. Singh, Advocate, which was rejected, by the trial court. The revision filed by the petitioner against the said order was also dismissed.
It has been urged by the learned counsel for the petitioner that in view of Section 44 of the Indian Evidence Act the petitioner was entitled to lead evidence to show that ex parte order was obtained by fraud and the application filed by him to adduce evidence to establish the same has wrongly been rejected by the court below..
I have considered the arguments advanced by the learned counsel for the petitioner and perused the record. Admittedly, the petitioner never filed any application for setting aside the decree stated by him to be ex parte. Further objection under Section 47 of C.P.C. was filed on the ground that his signature on the summon as well alleged vakalatnama of Sri B.R. Singh, Advocate filed in SCC suit were fraud. There were other ways and means by which the petitioner could have establish that his signatures on summon as well as vakalatnama are forged and it was not necessary to summon the process server or the Advocate to establish the same. It appears that application has simply been moved to delay the execution proceedings.
In view of the above, I find no illegality in the impugned order. The writ petition accordingly fails and is dismissed.
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