Arunagiri v. V.S. Jayalakshmi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 24.11.2009CoramTHE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.No.3748 of 2009 andM.P.No.1 of 2009 Arunagiri ..Petitioner Vs.

V.S.Jayalakshmi2.J.Kumaravel ..RespondentsCivil Revision Petition has been filed Under Section 115 of CivilProcedure Code against the order dated 30.07.2009 passed in E.A.No.68of 2009 in E.P.No.142 of 2008 in O.S.No.402 of 2007 on the file of the District Munsif Court, Pollachi. For Petitioner : Mr.P.JegadeesanFor Respondents : Mr.N.E.A.Dinem for M/s.V.Nicholas ORDER Heard the learned counsel for the revision petitioner. Theoffice is directed to number the Civil Revision Petition.

Heard both sides.

At the outset, it is mentioned that the revisionpetitioner/defendant has filed this revision petition as against the order dated 30.07.2009 passed in E.A.No.68 of 2009 in E.P.No.142 of2008 in O.S.No.402 of 2007 on the file of the District Munsif Court, Pollachi in dismissing the application filed by the revision petitioner under Order 21 Rule 106 of the Civil Procedure Code.

The office of the Registry has entertained a doubt as to the maintainability of the Civil Revision Petition projected by the Revision petitioner/Defendant before this Court, though the office has not spelt out in its note expressly as to why the revision petition is not maintainable in law. https://hcservices.ecourts.gov.in/hcservices/

However, the learned counsel for the revisionpetitioner/defendant has made the following endorsement in regard to the maintainability of CRP SR raised by the office, which runs as follows: "EP 142/2008 was filed under Order 21 Rule 11(2) CPC the order or delivery was passed in EP 142of 2008 under Order 21 Rule 35 CPC, exparte. Theorder of delivery dated 26.02.2009 passed under Order 21 Rule 35 CPC is not an appealable order. The present EA.68 of 2009 was filed under Order21 Rule 106 CPC to set aside the exparte order dated26.02.2009 in E.P.142 of 2008 directing delivery of the suit property. The order passed in EA.68 of 2009 is only aRevisable order under Order 43 Rule i(ja) CPC.Because, under the said Rule an appeal is provided only against appealable orders. Since, the order of delivery dated 26.02.2009passed under Order 21 Rule 35 of CPC in EP.142 of2008 is not an appealable order, only a revision is maintainable under section 115 CPC.Hence, the above CRP is maintainable. "

Hence the Civil Revision Petition in SR.No.87430 of 2009has been posted before this Court under the caption "maintainability".

The learned counsel for the revision petitioner/defendanturges before this Court that as against the order passed in E.A.No.68of 2009 in E.P.No.142 of 2008 in O.S.No.402 of 2007 dated 30.07.2009,only the Civil Revision Petition is maintainable before this Courtand not an appeal and in support of his contention he invites the attention of this Court to Order 43 Rule i(ja) which runs thus "An order rejecting an application made under Sub-Rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred in Sub-Rule (1) of Rule 105 of that order is appealable. "

Further according to the learned counsel for the revision petitioner the order passed in E.P.No.142 of 2008 on 26.02.2009 to the effect that 'the respondents served', 'the respondents calledabsent' and 'set exparte' delivery by 09.04.2009 has been passed under Order 21 Rule 35 of CPC which is not a appealable order and therefore only the Civil Revision Petition alone is competent before https://hcservices.ecourts.gov.in/hcservices/ this Court. After going through the Order 43 Rule i(ja) provision of Civil Procedure Code and also after hearing the learned counsel for the revision petitioner, this Court finds substance in the arguments advanced by the learned counsel for the revision petitioner that there vision alone is competent in the present case as against the order passed in E.A.No.68 of 2009 and as such it is held that the present revision petition filed by the revision petitioner is perfectly maintainable and resultantly, the doubt of the office of Registry asto maintainability of the revision petition is not a valid and acorrect one.

Coming to the main Civil Revision Petition, the main plank of attack made by the learned counsel for the revision petitioner in Civil Revision Petition is that the order passed by the executingCourt in E.A.No.68 of 2009 dated 30.07.2009 in E.P.No.142 of 2008 inO.S.No.402 of 2007 is perse illegal because of the fact that the executing Court has not taken note of the facts and circumstances of the case in an integral fashion and also the executing Court has erred in coming to the conclusion that the petition to set aside theexparte order is a time barred one and in short, the executing Courtshould have accepted the explanation of the revisionpetitioner/defendant for his non-appearance on 26.2.2009.

Apart from the above, it is the specific contention of the learned counsel for the revision petitioner that the revision petitioner has no knowledge about order dated 26.02.2009 passed by the executing Court in E.P.No.142 of 2008 to the effect that the'respondent served' and revision petitioner called absent and setexparte and delivery by 09.04.2009 and therefore he has projected the execution application only on 21.07.2009 after the revision petitioner has come to know of the exparte order and absolutely in the present case on hand, there is no material available to show that the revision petitioner has knowledge about exparte order either on26.02.2009 or prior to 21.07.2009 and looking it from any angle, the order of the executing Court in E.A.No.68 of 2009 is clearly anunsustainable one in the eye of law and therefore, prays for allowingCivil Revision Petition to prevent aberration of justice.

Per contra, the learned counsel for the respondents/decreeholders submits that the revision petitioner/defendant has been served with the notice in execution proceedings and the said notice has been served on him on 06.02.2009 and he has been set exparte on26.02.2009 and admittedly, the revision petitioner has projectedE.A.No.68 of 2009 only on 22.07.2009, which is clearly beyond the prescribed time limit of 30 days as per Order 21 Rule 106 of CivilProcedure Code.

It is not out of place for this Court to make a mention that the revision petitioner/defendant in E.A.No.68 of 2009 in the affidavit has specifically averred that on 21.07.2009 while he has https://hcservices.ecourts.gov.in/hcservices/ been in the petition mentioned property to level the land to drain the rain water from the petition mentioned property, the firstrespondent/decree holder has come to the property site and informed that she has got an order of eviction and asked him not to make any repairs extra and on obtaining the information from firstrespondent/decree holder, he has projected the executing order saying about the execution proceedings and he has been informed by the Advocate set exparte on 26.06.2009 and delivery has been ordered on26.06.2009 by the executing Court and since he has come to know about the execution proceedings only on 21.07.2009 and moreover during the period of last week of February 2009 he has been in kerala for atreatment and unable to engage his counsel and under these circumstances he has prayed for the relief of setting aside theexparte order passed against him on 26.06.2009 by the executing Court.

Before the executing Court the first respondent/decreeholder has filed a detailed counter interalia stating that there vision petitioner/defendant has not filed the E.A.No.68 of 2009within 30 days from the date of order namely 26.02.2009 in E.P.No.142of 2008 and inasmuch as the said execution application has been projected by the revision petitioner/defendant beyond the ambient purview of 30 days limit the said execution application is not maintainable in law and also that A.S.No.66 of 2008 has been filed by the revision petitioner/decree holder as against the judgment and decree passed in O.S.No.402 of 2007 dated 26.02.2009 and the same has been dismissed on 25.02.2009 in the execution proceedings. Therevision petitioner has received the notice for the hearing dated26.06.2009 and therefore, the execution application in E.A.No.68 of2008 projected by the revision petitioner is not to be allowed in the interest of justice.

At this juncture, this Court pertinently recalls the provision Order 21 Rule 106(3) of Civil Procedure Code which runs thus"An application under Sub-Rule (1) shall made within 30 days from the date of the order, or where, in the case of an exparte order, the notice was not duly served, within 30 days from the date when the applicant had knowledge of the order. "15. The learned counsel for the respondent/decree holder bringsit to the notice of this Court to the decision Damodaran Pillai and others Vs. South Indian Bank Ltd. 2005 (4) CTC 534 whereby andwhereunder the Honourable Supreme Court has interalia "observed that starting point of limitation for filing restoration application would be date of order and not date of knowledge of order and thoughthe date of knowledge of order was held to be whollyirrelevent and also Section 5 of the Limitation Act https://hcservices.ecourts.gov.in/hcservices/ was held to be not applicable and the Civil Courtwas held not to have inherent power to condone the delay in absence of express provision and moreover when power is to be exercised by Civil Court under express provision, inherent power cannot be restored to. As a matter of fact the hardship or injustice cannot be a ground for extending period of limitation. "

As far as the present case is concerned it is crystal clear that the revision petitioner has received the notice in the execution proceedings on 06.02.2009 and that he has been set exparte on26.02.2009. Therefore, this Court, on the basis of the facts and circumstances of the case which float on the surface comes to an inevitable conclusion that E.A.No.68 of 2009 filed by the revision petitioner is beyond the period of 30 days limitation prescribed and therefore the revision petitioner is clearly outside the ambit of time limit specified and resultantly, this Court holds that the CivilRevision Petitioner is devoid of merits and accordingly the same fails.