Madras High Court
V.Krishnan vs E.Vijayalakshmi on 1 February, 2021
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P.(NPD).No.2746 of 2018
and
Cmp.No.16135 of 2018
V.Krishnan ... Petitioner
Versus
E.Vijayalakshmi ... Respondent
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code, to set aside the petition and order dated 28.06.2018 made in E.A.No.582
of 2018 in E.P. No. 2455 of 2017 in O.S. No. 476 of 2017 on the file of the IX-
Assistant City Civil Court, Chennai.
For Petitioner : Mr.G.Prabhakar
For Respondent : No Appearance
ORDER
This Civil Revision Petition has been filed challenging the order dated
28.06.2018 passed in E.A.No.582 of 2018 filed under Order XXI and Rule 106
of CPC., to set aside the ex-parte order dated 03.01.2018 made in E.P.No. 2455
https://www.mhc.tn.gov.in/judis/
of 2017 in O.S.No.476 of 2017 on the file of the IX-Assistant City Civil Court,
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
Chennai.
2. The suit in OS No. 476 of 2017 was filed by the respondent herein
for recovery of Rs.4,72,000/- with further interest. The suit was decreed exparte
on 04.03.2017. To execute the exparte decree, EP No. 2455 of 2017 was filed.
The Execution Petition was also ordered exparte on 03.01.2018.
3. While so, on 25.01.2018, the defendant/revision petitioner filed
E.A.No.582 of 2018 in EP No. 2455 of 2017 under Order 21 Rule 106 of CPC
seeking to set aside the exparte Order passed in the Execution Petition. The
Plaintiff/decree holder filed a counter affidavit in E.A.No.582 of 2018 and
stated that on notice in the Execution Petition, the defendant appeared through
his counsel and stated that the above matter will be settled amicably. Therefore,
this Court posted the case on 09.12.2017 before the Lok Adalat, but the
defendant/Judgment Debtor did not appear.
4. The Court below on considering the submission of both sides,
allowed EA No. 582 of 2018 subject to payment of 1/10 of the amount claimed
in the Execution Petition namely 1/10th amount of Rs.5,24,741/- viz.,
Rs.54,274/- towards part settlement of the decree and also to pay Rs.1,500/- to
https://www.mhc.tn.gov.in/judis/
the Honourable Chief Minister Relief Fund on or before 16.07.2018 failing
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
which the petition will be dismissed. Aggrieved by the order dated 28.06.2018,
the defendant/Judgment Debtor has filed this Civil Revision Petition.
5. The learned counsel for the revision petitioner submitted that the
petitioner has filed an application in I.A.No.10874 of 2018, to condone the
delay in filing the petition to set aside the exparte order and the delay was
condoned in the month of March 2019. Now, the case is posted on 12.02.2021,
to pass an order in the application to set aside the exparte decretal order passed
in O.S.No.476 of 2017. The learned counsel for the revision petitioner
contended that pending the I.A. No.10874 of 2018, the conditional order was
passed in E.A.No. 582 of 2018, Further, he stated that the revision petitioner
has got very good chance of succeeding in the suit. Under these circumstances,
the conditional order passed in the Execution Application would cause prejudice
to the revision petitioner/defendant in the event of dismissal of the suit filed by
the plaintiff. Above all, by a subsequent order dated 25.07.2018, the trial court
allowed the EP No. 2455 of 2018 and attached the properties of the revision
petitioner/defendant. Therefore, he prayed for allowing this Civil Revision
Petition.
6. Though notice was served to the sole respondent and his name is
also printed in the cause list, none appeared on his behalf.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
7. Heard the learned counsel for the petitioner and perused the
materials available on record.
8. On a perusal of the record, it appears that the E.A.No. 582 of 2018
was pending from the year 2018, onwards. The said EA No. 582 of 2018 has
been filed to set aside the exparte order passed in E.P.No.2455 of 2017 on
03.01.2018. While allowing the EA No. 582 of 2018, the trial court imposed
condition to deposit 1/10th of the amount claimed in the Execution Petition
besides payment of Rs.1,500/- as costs. When seeking to set aside the exparte
order, the Execution Court ought not to have passed such an order, as the Court
below has already condoned the delay for setting aside the exparte order passed
in E.P.No.2455 of 2017 without any condition. The petitioner has also filed an
I.A.No.10874 of 2018 to set aside the exparte decree in the suit. The petitioner
submits that there is a chance for the petitioner to succeed in the suit as the
petitioner has already filed a petition to set aside the exparte in the suit.
Therefore, this Court is of the opinion that it would be appropriate to direct the
Court below to dispose of I.A.No.10874 of 2018, in O.S.No.476 of 2017, and
accordingly, this Court directs the Court below to dispose of the I.A.No.10874
of 2018, within a period of 30 days, from the date of receipt of a copy of the
order. Until then, this Court stays all further proceedings in E.P.No.2455 of
https://www.mhc.tn.gov.in/judis/
2017.
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
9. With the above observations and directions, the Civil Revision
Petition is disposed of. No costs. Consequently, the connected miscellaneous
petition is closed.
klt 01.02.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
The IX-Assistant City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
KRISHNAN RAMASAMY, J.
klt
C.R.P (PD).No.2746 of 2018
and
Cmp.No.16135 of 2018
01.02.2021
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.2746 of 2018, dt.01.02.2021
* The suit in OS No. 476 of 2017 was filed by the respondent herein
for recovery of Rs.4,72,000/- with further interest at the rate of 2%
per month
* The suit was decreed exparte on 04.03.2017
* To execute the exparte decree, EP No. 2455 of 2017 was filed. The
Execution Petition was ordered exparte on 03.01.2018
* On 25.01.2018, the defendant/revision petitioner filed EA No. 582 of
2018 in EP No. 2455 of 2017 seeking to set aside the exparte Order
under Order 21 Rule 106 of CPC
* The Plaintiff/decree holder filed a counter affidavit in EA No. 582 of
2018 and stated that on notice in the Execution Petition, the
defendant appeared through his counsel and stated that the above
matter will be settled amicably. Therefore, this Court posted the case
on 09.12.2017 before the Lok Adalat, but the defendant/Judgment
Debtor did not appear. The Execution Application has been filed to
protract the proceeding and therefore prayed for dismissal of the EA
No. 582 of 2018.
* The trial court allowed EA No. 582 of 2018 subject to payment of
1/10 of the amount claimed in the Execution Petition namely 1/10th
amount of Rs.5,24,741/- viz., Rs.54,274/- towards part settlement of
the decree and also to pay Rs.1,500/- to the Honourable Chief
Minister Relief Fund on or before 16.07.2018 failing which the
petition will be dismissed.
* Aggrieved by the order dated 28.06.2018, this CRP is filed.
https://www.mhc.tn.gov.in/judis/
