1. Case taken up. Learned Counsel for both side are present. This Miscellaneous Application No. 254/2023, is for recall of order dated 6.10.2023, passed by this Tribunal in Execution Application No. 1/2021, related with the BP No. 347/2019.
2. In brief, the application contains that Counsel for Petitioner tried to mis-lead the Tribunal, by way of hiding the fact from the Tribunal, that the Respondent had not filed any reply to the application, pending before this Tribunal.
3. Affidavit filed by Petitioner/Decree Holder, is contrary to the directions passed by Hon’ble High Court. The same affidavit may not be taken on record by this Tribunal, in view order passed by Hon’ble High Court in Writ Petition Civil No. 18800/2021, and OP(C) 2117/2021. There had been an order while disposing of his original Petition, enumerated at Page No. 2, in Para 1 in italics. In view of above order passed, the MA No. 124/2021, EA No. 1/2021, and order dated 11.10.2021, in EA No. 1/2021 in BP No. 347/2019, were kept in abeyance. But the impugned order dated 6.10.2023, has been passed. Hence, this prayer is for recall of same.
4. Learned Counsel for Petitioner had vehemently opposed with this contention that the order dated 6.10.2023, is in no way against the order of Hon’ble High Court. Rather, it was for imposition of cost and the circumstances, under which this cost was imposed. No where, it was a coercive order.
5. Heard, Learned Counsel for both side and gone through the record.
6. From the very perusal of order of Hon’ble High Court cited as above, it is apparent that this Tribunal was directed to consider and dispose of Execution Application No.1/2021, in BP No. 347/2019, and all pending applications, in accordance with law, and as expeditiously as possible.
7. The same was there, at Sub-clause (iii) of the order, written as above, that the Tribunal is not to be influenced by any observation given by order of the High Court, in passing of above order. Meaning thereby, this Tribunal was permitted to exercise its jurisdiction, as per law and as expeditiously as possible, without being influenced by the observation or direction given as above. Hence, disposal at an expedient was to be obeyed by this Tribunal, but the order sheet dated 6.10.2023, reveals that the conduct of the judgment debtor (JD) was narrated in it, and there had been repeated adjournments on the ground of counsel for JD. Under above pretext that too with reasoned elaboration, this cost was imposed. Hence, this imposition of cost is in no way any coercive measure against judgment debtor.
6. It is note worthy to mention that in past, at many times, Hon’ble Apex Court as well as Hon’ble High Court, had propounded that Courts are the best friend of the Decree Holder (DH), because by way of executing decree, they are not giving any additional benefit to any litigant. Rather, they are giving the fruits of adjudication, which had been adjudicated and the judgment debtor never intends to fulfill its liability, except by taking all steps for lingering on and avoiding the soldiering of above pain taking liability.
7. Under above observation, this application merits dismissal that too, with a cost. Cost is being exonerated on the request of Counsel for being lenient towards JD. MA stood disposed of, accordingly.
8. However, learned Counsel for JD, being a submissive and pleasant lawyer, is being expected to cooperate his full support for getting this old year Execution Application disposed of, at an earliest for fulfilling the direction given by Hon’ble High Court, in the Writ Petition filed by JD itself.
9. List the matter 'for hearing' on 24.4.2024 for disposal of this EA.
10. Fresh Vakalatnama of the Counsel for DH, is taken on record.
