s..i..n..g..h.. (member) 02 September 2010

recall application in ex-parte sec 9 HM act decree

hello i obtained sec 9 decree(RCR) ex-parte when my wife has not appeared in court , i filed execution of RCR ,now after more then 1 year my wife appeared in execution prooceeding and said that it(decree) should be recalled

though i have every evidence that she knows about prooceeding(through RTI in dept of post and her own admission in a different case (498a) that she knew about RCR/sec 9 decree

now what to do
i want that her application of recall should be rejected
pls suggest and give supporting judgments

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4 Replies

Mugundhan (Lawyer) 02 September 2010

first of all the petition filed by ur wife would be i suppose is not to recall, but it would a petition to set aside the exparte order passed against her. In the affidavit accompanying the petition she would have stated the reasons for her non appearance. If the said reasons are not true, you can file counter and in the enquiry you can prove that the reasons stated by her are false. The court may or may not allow the petition filed by her. But in my opinion the courts would allow the petition because, the courts would always to a possible extent, like to dispose any case on merits rather than exparte. But try ur best.

Devajyoti Barman (Advocate) 05 September 2010

In the proceeding for execution of decree no petition fro recall or setting aside the decree could be filed. The executing court can not go beyond the decree.If the wife wants to set aisde the decree then either she will have to file a petition under order 9 rule 13 of cpc or prefer an appeal to the high court. Any petition for recalling the decree in the executing court is purely miscocnceived and non maintainable.