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This writ petition has been filed by the petitioner while challenging the order dated 4.4.2011 passed by the Civil Judge (Senior Division) No.3, Udaipur in Civil Misc. Case No.8/2007. The petitioner has also prayed for quashing the order dated 31.1.2011 passed by the learned Civil Judge (Senior Division) Rajsamand and in the alternative prayed that the Civil Judge (Senior Division) Rajsamand may be directed to decide the application dated 15.11.2010 on merits.

The brief facts of the case are that the respondent No.1 has preferred a suit under Order 37 Rule 2 C.P.C. for recovery of an amount of Rs.45,000/- against the petitioner. The suit No.174/2006 preferred by the respondent No.1 was decreed by the Addl. Civil Judge (Senior Division) No.3, Udaipur vide order dated 30.3.2007. In the judgment and decree dated 30.3.2007, the learned trial court has observed that despite service, the defendant did not appear and submitted his defence and as such the decree was passed. The petitioner moved an application under Order 37 Rule 4 read with Section 151 C.P.C. on 4.7.2007 before the Additional Chief Judicial Magistrate (Senior Division) No.3, Udaipur and the same is pending consideration.

During the pendency of the application preferred by the petitioner under Order 37 Rule 4 C.P.C. the execution proceedings were initiated by the decree holder M/s Rajshree Motors, respondent No.1 before the Civil Judge (Senior Division), Rajsamand. The petitioner moved an application before the Civil Judge (Senior Division) Rajsamand on 15.11.2010 and prayed that the execution proceedings be stayed as the application preferred by him under Order 37 Rule 4 C.P.C. before the trial court is pending. It is contended in the petition that application moved on 15.11.2010 by the petitioner before the Civil Judge (Senior Division) Rajsamand was posted on 31.1.2011, however, on 31.1.2011 no order was passed on the said application and the executing Court has ordered for issuing warrant under Order 21 Rule 30 C.P.C. It is stated in the petition that the executing Court has expressed its inability to pass any order for staying the proceedings. Thereafter, the petitioner moved an application before the ACJM (Senior Division) No.3, Udaipur on 29.3.2011 and prayed that the proceedings of recovery of money be stayed till the decision on the application under Order 37 Rule 4 C.P.C. Learned ACJM (Senior Division), No.3, Udaipur dismissed the said application vide order dated 4.4.2011.

Being aggrieved by the said order, the petitioner has preferred this writ petition claiming the reliefs as mentioned above.

The learned counsel for the petitioner has reiterated the points raised in the writ petition and has stated that the learned ACJM (Senior Division) No.3 Udaipur has grossly erred in rejecting the application dated 29.3.2011 preferred by the petitioner for staying the recovery proceedings initiated in pursuance of the decree dated 30.3.2007 because his application under Order 37 Rule 4 C.P.C. was still pending before the Court. It is also contended by learned counsel for petitioner that the executing Court i.e. Civil Judge (Senior Division), Rajsamand has also committed illegality in not deciding the application dated 15.11.2010 preferred by the petitioner for staying the execution proceedings. The counsel for the petitioner has contended that on the one hand the executing court has not stayed the execution proceedings and on the other hand the Court, who has passed the decree against the petitioner has refused to stay the recovery proceedings, therefore, the petitioner rendered remedyless and in such circumstances, the execution proceedings be stayed and the Civil Judge (Senior Division) No.3, Rajsamand be directed to decide the application of the petitioner preferred on 15.11.2010.

Per contra, learned counsel for the respondent No.1 Dilip Kawadia has argued that the action of the respondent of making application dated 15.11.2010 before the Civil Judge (Senior Division) Rajsamand and the application dated 19.3.2011 before the Civil Judge (Senior Division) No.3, Udaipur are nothing but an attempt to delay the execution proceedings. It is further contended by the learned counsel for the respondent No.1 that in fact, the petitioner has sought time before the executing Court i.e. Civil Judge (Sr. Division) Rajsamand to make payment within three days, however, without making the payment, it has preferred the application dated 29.3.2011 and in such circumstances, the conduct of the petitioner to this effect dis-entitles it from any relief from this Court under Article 227 of the Constitution of India. Learned counsel for respondent No.1 has further submitted that even the application preferred by the petitioner before the Civil Judge (Senior Division) No.3, Udaipur under Order 7 Rule 4 C.P.C. is devoid of any merit. The petitioner has failed to give any fact in the said application which entitles it to leave to defend the suit and in the said application, the petitioner has simply stated that the counsel for the petitioner has not informed before the trial court and, therefore, the petitioner was not able to present before the trial court in the proceedings of the suit No.174/2006. Learned counsel for respondent has relied upon the judgment of Hon'ble Supreme Court reported in 2003(7) SRJ 92 - Rajni Kumar Vs. Suresh Kumar Malhotra & Anr.