Madras High Court
Venkatachalam @ Venkatesan vs C.Kandasamy on 1 December, 2021
CRP (NPD) No.2585 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP (NPD) No.2585 of 2021
1. Venkatachalam @ Venkatesan
2. V.Nagarajan ... Petitioners
Vs
1. C.Kandasamy
2. Rukmani
3. Saraswathi
4. Dhanamani ... Respondents
Prayer: The Civil Revision Petition filed under Article 227 of the
Constitution of India, against the docket order made in E.A.SR No.36777 of
2019 in E.A.No.52 of 2013 in EPR No.108 of 2011 in O.S.No.528 of 2010,
dated 29.03.2021, on the file of the II Additional Sub Court, Coimbatore.
For Petitioner : Mr.C.Veera Raghavan
1/5
https://www.mhc.tn.gov.in/judis
CRP (NPD) No.2585 of 2021
ORDER
Considering the limited scope of the Revision and the nature of
the order that is challenged, notice to the respondents is deemed
unnecessary.
2. The challenge in this revision is to the returns made by the
learned II Additional Sub Judge, Coimbatore on a petition filed by the
petitioner seeking restoration of E.A.No.52 of 2013 which was dismissed
for default on 15.03.2018. The said Execution Application was filed by the
petitioners who are third parties under Order XXI Rule 97 of C.P.C.,. The
petitioners filed another application under Order XXI Rule 106 r/w 151 of
C.P.C., seeking restoration of the execution application that was dismissed
for default. The trial Court returned the applications, requiring the
petitioners to show cause,
(i) how the petition is maintainable after possession has been
delivered and recorded.
(ii) E.A.No.52 of 2013 was dismissed on 15.03.2018 above 30
days. Hence, how this petition is maintainable
https://www.mhc.tn.gov.in/judis
CRP (NPD) No.2585 of 2021
(iii) correct provision of law to be mentioned.
3. The same was represented answering the quarries raised and
relying upon the Judgment reported in 2011 (6) CTC 268, wherein this
Court had held that Section 5 of Limitation Act is applicable as per Rule
105 (4) of C.P.C. There is no bar for the Court to hear an application under
Order XXI Rule 97 after delivery of possession as the Court will have
power to order restitution under Rule 99 of Order XXI of C.P.C.
4. There is also another view taken by this Court in T.Natarajan
Vs. S.Tejraj and another reported in 2021 (1) CTC 295 that if the
Execution proceedings are not posted for hearing as contemplated under
Order XXI Rule 106 of C.P.C., the Limitation for setting aside the dismissal
would not be 30 days, but three years.
5. In view of the above, the returns made by the learned
Subordinate Judge are not fully justified. Hence, the petitioner is required
to represent the execution application, explaining as to how the application
https://www.mhc.tn.gov.in/judis
CRP (NPD) No.2585 of 2021
is within time and the learned Subordinate Judge is required to number the
application and proceed to dispose of the same in accordance with law. The
Civil Revision Petition is dismissed. No costs.
01.12.2021
vum
Index: Yes/No
Speaking order / Non speaking order
Note: Registry is directed to return the
original petition that has been filed along
with this Civil Revision Petition forthwith
to enable the counsel to represent the same.
To:
1. The II Additional Sub Court, Coimbatore.
2. The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No.2585 of 2021
R.SUBRAMANIAN, J.
vum
CRP (NPD) No.2585 of 2021
01.12.2021
https://www.mhc.tn.gov.in/judis
