Madras High Court
Venkatesan vs G.Sankar on 30 November, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
C.R.P.No.4294 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2023
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.4294 of 2023
and
C.M.P.No.26158 of 2023
Venkatesan ... Petitioner
-Vs-
1.G.Sankar
2.Anitha Sankar
K.Ganesan (deceased)
3.Kasthuri ... Respondents
Prayer : Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the fair and decreetal order
passed by the Hon'ble XXVI Assistant Judge, City Civil Court, Chennai in
E.A. No.3 of 2022 in E.P. No.1323 of 2019 in OS No.10167 of 2010 dated
25.07.2023.
For Petitioner : Mr.D.Prasanna
1/5
https://www.mhc.tn.gov.in/judis
C.R.P.No.4294 of 2023
ORDER
Challenging the fair and decreetal order passed by the learned XXVI
Assistant Judge, City Civil Court, Chennai in E.A.No.3 of 2022 in
E.P.No.1323 of 2019 in O.S.No.10167 of 2010, dated 25.07.2023, the
Revision Petitioner/3rd judgment debtor preferred this Civil Revision
Petition.
2. Since the relief sought against the order passed by the Executing
Court, notice to the respondents is dispensed with.
3. Before the Executing Court, the Revision Petitioner herein is the
3rd Judgment Debtor in E.P.No.1323 of 2019 in O.S.No.10167 of 2010.
Based on the decree obtained in the said suit, the respondents/decree
holders have initiated the execution proceedings to execute the same, in
which he is a 3rd Judgment debtor and he is having valid defence. However,
he did not appear on the date of hearing due to his illness, thereby, an ex-
parte order was passed against him. Thereafter, he filed application in
E.A.2 of 2022, to set aside ex-parte order passed against him along with an
application to condone the delay of 35 days. The same was objected by the
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decree holder stating that in order to drag on the proceedings, the Revision
Petitioner filed the said application. Considering both side submissions, the
learned trial Judge dismissed the said application for the reason that the
delay has not been properly explained. Challenging the said findings, the
Revision Petitioner preferred this Civil Revision Petition.
3. The learned counsel for the Revision Petitioner submitted that the
delay was neither willful and nor wanton, but the learned trial Judge has
erroneously concluded that to drag on the proceedings he has filed the
application. Accordingly, he prayed to set aside the findings of trial judge.
4. On a perusal of records, it is seen that there was a delay of only
35 days in filing an application to set aside the ex-parte order of arrest
made in the execution proceedings. After the ex-parte order, immediately
he filed his objection within a period of 5 weeks. However, if an
opportunity is not given to him, his valuable right will be defeated. But,
without considering his submissions, the Executing Court dismissed the
said application, as such is erroneous one and the same is liable to be set
aside. Accordingly, this Civil Revision Petition is allowed and the findings
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rendered by the learned trial Judge in E.A.No.2 of 2022 in E.P.No.1323 of
2019 in O.S.No.10167 of 2010 is set aside and the E.A.No. 2 of 2022 is
ordered to be allowed. The revision petitioner is directed to file his counter
objection before the Executing Court. However, the learned trial Judge is
directed to complete the trial and dispose of the case within a period of six
weeks from the date of receipt of copy of this order. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
30.11.2023
Index : Yes/No
Speaking Order : Yes/No
rpp
To
The XXVI Assistant Judge, City Civil Court, Chennai
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
rpp
30.11.2023
https://www.mhc.tn.gov.in/judis
