Regarding set aside decree under o-9,r-13 of cpc
Advocate hamza
(Querist) 16 May 2023
This query is : Resolved
Can a court when execution is been running from one year , court may set aside decree during the execution?
T. Kalaiselvan, Advocate
(Expert) 17 May 2023
If there was an exparte order passed by the execution court, then the respondent can file a petition under order 21 cpc to set aside the exparte order for the reasons he may rely upon
Dr J C Vashista
(Expert) 19 May 2023
During pendency of an execution petition the Judgement Debtor / Defendant should file an application under Order IX Rule 13 CPC before the Trial Court to set aside ex-parte decree (under execution).
Besides this the JD should move an application under order XXI Rule 26 CPC for stay of execution petition before executing court.
However, provisions of Section 21 CPC are inapplicable in the instant case which provide for objection to jurisdiction of Trial Court which reads as:
1[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]
