Madras High Court

Shaheen vs M/S.Super Tech Training Co on 27 June, 2025

Author: N. Sathish Kumar

Bench: N. Sathish Kumar

                                                                                           C.R.P.No.1355 of 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               Date : 27.06.2025

                                                          CORAM :

                            THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR

                                    C.R.P.No.1355 of 2025 & C.M.P.No.8038 of 2025

                   1.Shaheen
                   2.Uzaifa
                                                                                         ... Petitioners
                                                                Vs.

                   1. M/s.Super Tech Training Co.
                      Rep. By its Managing Partner Mr.S.Ramasmy
                      Having business at No.29/1, T.T.Mudaliar Street,
                      Woraiyur, Tiruchirapalli – 620 003.

                   2. M/s.Al-Mudassir & Co.,
                      Rep. By its Partner Mr.O..Nazar
                      37/2, Murugappa Street,
                      Pursawalkam, Chennai – 600 007.

                   3. O.M. Nazir, Partner, M/s.AL-Mudassir & Co.,
                      37/2, Murugappa Street,
                      Pursawalkam, Chennai – 600 007.

                   4, Mrs.Rizwana, Partner Mr.AL-Mudassir & Co.,
                      37/2, Murugappa Street,
                      Pursawalkam, Chennai – 600 007.

                   5. Afan
                   7. Ujma [deceased]                                                    ... Respondents



                   Page 1 of 17



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                                                                                         C.R.P.No.1355 of 2025

                   Prayer : Civil Revision Petition filed under Article 227 of Constitution of
                   India against the fair and decretal order dated 04.01.2025 in E.A.No.3 of
                   2024 in E.P.No.661 of 2022 in O.S.No.1355 of 2017 passed by the learned
                   XXV Assistant Judge, City Civil Court, Chennai and thereby allow the
                   above Civil Revision Petition.

                                   For Petitioners       :   Mr.R.Abdul Mubeen
                                                             in both petitions

                                   For Respondents :          Ms.D.Kamachi – R1


                                                          ORDER

Challenging the order of the Execution Court dismissing the

application under Order 21 Rule 105 of Code of Civil Procedure CPC by

condoning the delay of 822 days, the present revision petition had been

filed.

2.The suit in O.S.No.1355 of 2017 has been originally filed by the

plaintiff/first respondent for recovery of a sum of Rs.5,87,121.80 against

the petitioners and the other respondents/defendants. As the defendants

have not appeared before the trial Court despite receipt of summons, an

exparte decree has been passed in the suit on 28.08.2019. The decree

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holder filed Execution Petition in E.P.No.661 of 2022 to enforce the decree.

Even in the Execution Proceedings, as the judgment debtors evaded notice,

the decree holder is taking steps to bring the property for sale to recover the

decree amount. When the matter stood thus, the judgment debtors have

filed the present application under Order 21 Rule 105 CPC to condone the

delay of 822 days in filing an application to set aside the ex parte decree.

3. The said application has been opposed by the decree holder on the

ground that each and every day delay has not been explained with sufficient

cause and the reasons were vague and not supported with any evidence.

The Execution Court dismissed the application by an order 04.01.2026 on

the ground that no valid reason has been stated in the application to

condone such a huge delay and he has not proved the reasons stated in the

application. Challenging the same, the present revision petition has been

filed by the judgment debtors.

4. The learned counsel appearing for the petitioners would submit

that the petitioners came to know about the judgment and decree only after

receipt of notice in the Execution Proceedings. It is his further contention

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that though they had explained the reason for delay in filing an application

to set aside the exparte decree, the Executing Court failed to consider the

same and dismissed the application.

5. Whereas, the learned counsel appearing for the petitioners would

submit that, as per Order 21 Rule 106 CPC, an application to set aside an ex

parte order in the execution proceedings has to be filed within a period of

30 days and Section 5 of the Limitation Act is not applicable to the

execution proceedings. It is his primary contention that, if the application

is not filed within 30 days as per Order 21 Rule 106 CPC, the delay cannot

be condoned.

12. Heard the learned counsel for the petitioners and the first

respondent.

13. This Court by a detailed Order dated 26.06.2025 in Civil

Revision Petitions in CRP.Nos.808 and 809 of 2025 had elaborately

discussed the entire history before the amendment and the issue behind the

amendments brought in by the Madras High Court in 1945 and 1972 and

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the amendment brought to the main Code by the Parliament in 1976 and

had held that mere perusal of the provisions of Order 21 Rules 104 and 105

of the Madras Amendment and Order 21 Rules 104 and 105 of the Central

Act, would show that its very placement is inconsistent, since Order 21

Rules 104 and 105 of the Madras Amendment have now been placed as

Order 21 Rules 105 and 106 of the Central Act. Order 21 Rule 106 of the

Madras Amendment originally inserted on 19.05.1954 has also not

survived. The Division Bench in N.M.Natarajan v. Deivayanai Ammal

reported in (1989) 1 LW 178, has also held that amendment brought in Rule

105(4) of Order 21 CPC, which came into effect on 04.09.1945, stood

repealed. Therefore, it would be anomalous to hold that proviso to Order

21 Rule 105(3) alone would survive. In such view of the matter, the

proviso would certainly be unworkable. This is because, for the proviso to

be workable, it can be read only along with Order 21 Rule 106(3) of Central

Act and not otherwise.

14.The judgment of the Full Bench of the Andhra Pradesh High Court

in Ch.Krishnaiah v. Ch.Prasada Rao reported in (2010) 2 CTC 225, was

followed by the learned Single Judge in N.Rajendran v. Shriram Chits

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Tamil Nadu Pvt. Ltd. reported in (2011) 6 CTC 268. On a perusal of the

above makes it clear that Sub-Rule (4) of Rule 106 of Order 21 was inserted

by the High Court of Andhra Pradesh in 1992 after the decision of the

Hon'ble Supreme Court in Ganpat Giri v. Second Additional District

Judge, Ballia and others reported in (1986) 1 SCC 615. However, similar

provision does not exist in Tamil Nadu. Though the proviso introduced to

Order 21 Rule 105(3) was retained in the Madras Amendment, it is relevant

to note that Section 121 CPC clearly indicates that Rules in the First

Schedule shall have effect as if enacted in the body of the Code until

annulled or altered in accordance with the provisions in the Part. Therefore,

the Hon'ble Supreme Court in Ganpat Giri's case (supra) has clearly held

that the repealing provision in Section 97(1) is not confined in its operation

to provisions of the Code including the Orders and Rules in the First

Schedule which are actually amended by the Amending Act. The very

object of the Section 97 of the Amending Act, appears to be that, on and

after 1977, throughout India, wherever the Code was in force, there should

be same procedural law in operation in all the Civil Courts, subject, of

course, to any future local amendment that may be made either by the State

Legislature or by the High Court. In such view of the matter, though the

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proviso was brought under the First Schedule, it will have an effect as if

enacted in the body of the Code. Admittedly, the First Schedule is amended

by the Central Act. Any amendment of the State or High Court which is

inconsistent with the Central Act stands automatically repealed as per

Section 97 of the Amending Act.

15.The Single Bench of this Court, in Ayappa Naicker v.

Subbammal and another reported in (1984) 1 MLJ 214, has clearly held

that question of invoking inherent powers under Section 151 CPC does not

arise, that is because of the specific provisions contained in Rule 106 of

Order 21 CPC. It is therefore, there is repugnancy between the Central Act

under Rule 106 and the Madras Amendment under Sub-Rule (4) of Rule

105 of Order 21 CPC. It is Section 97 of the Amending Act in relation to

repeal and savings that would apply. The said view has been approved by

the Hon'ble Supreme Court in Damodaran Pillai and others v. South

Indian Bank Ltd. reported in (2005) 7 SCC 300. The Hon'ble Supreme

Court, in Damodaran Pillai's case (supra), has also taken note of the

hardship or injustice that may occur to the parties and held that hardship or

injustice may be a relevant consideration in applying the principles of

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interpretation of the statute, but cannot be a ground for extending the period

of limitation. Various learned Single Judges of this Court, viz., Hon'ble Ms.

Justice P.T.Asha, in M.Raji and others v. Arulmigu Komeleeswarar

Devasthanam reported in (2008) SCC Online Mad 4604; Hon'ble Mr.

Justice S.Tamilvanan in the case of Manickam and another v. Rahamath

Beevi & others reported in (2012) 1 LW 970; Hon'ble Mr. Justice S.Sardar

Zackria Hussain, in the case of M.Ponnupandian v. Selvabakiyam and

others reported in (2003) 4 CTC 225, have also taken a view that limitation

cannot be extended. However, divergent views have been taken by various

other learned Single Judges of this Court, viz., Hon'ble Mr. Justice

G.Chandrasekaran, in Chandan Pharmaceuticals Corporation v. P.K.Jalan

and others [C.R.P.(NPD) No.1992 of 2021, dated 08.10.2021]; Hon'ble Mr.

Justice S.S.Sundar, in Kanagaraj v. Sudha [C.R.P.(NPD) No.3608 of 2019,

dated 11.01.2022]; Hon'ble Mr. Justice D.Krishnakumar, in Meera

Balakrishnan v. R.Manju [C.R.P.(NPD) No.879 of 2016, dated

20.04.2017]; Hon'ble Mr. Justice D.Hariparanthaman, in T.S.Subbaiya v.

Vengaiyan reported in (2015) 4 LW 715; and Hon'ble Mr.Justice

K.Kumaresh Babu, in The Sports Development Authority v. Tamil

Radhesoami Satsang Association [C.R.P.(NPD) Nos.856 & 857 of 2015,

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dated 14.07.2022] have followed the judgment in N.Rajendran's case

(supra). It is relevant to note that, merely because few learned Single

Judges have followed the judgment in N.Rajendran's case (supra) without

any further elaboration, it does not make it a precedent. The Hon'ble

Supreme Court, in Hindustan Construction Company Limited and

another v. Union of India and others reported in (2020) 17 SCC 324, has

held that, when a decision does not state the law correctly, merely the fact

that it has been subsequently followed, does not make it a precedent. Now,

a question arises as to whether the matter requires reference to the Division

Bench. This Court is of the view that, since the judgment of the learned

Single Judge in Ayappa Naicker's case (supra), has been upheld by the

Division Bench as well as by the Hon'ble Supreme Court in Damodaran

Pillai's case (supra), we are bound to follow the judgment of the Hon'ble

Supreme Court in Damodaran Pillai's case (supra) as a binding precedent.

Therefore, this Court is of the view that the matter does not require

reference to the larger Bench.

16.Hence, in the light of the above discussion, this Court is of the

view that the proviso introduced to Order 21 Rule 105 CPC by Madras

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Amendment, 1972, has been repealed by virtue of Section 97 of the

Amending Act.

17.However, this Court is conscious of the fact that parties should not

suffer due to the negligence on the part of their counsel in not following the

cases properly. The High Court can exercise its powers under Section 122

CPC to set out its own procedure; to make rules regulating their own

procedure for the Civil Courts under its jurisdiction; and to bring in

amendment to the Rules in the First Schedule of Code of Civil Procedure.

As the proviso to Rule 105 of Order 21 CPC, brought in by the Madras

High Court Amendment, 1972, providing powers to the Courts to condone

the delay in execution proceedings, has been repealed after the Central

Amendment, 1976, this Court is of the view that, it is for the High Court, on

the administrative side, to consider re-introducing the proviso on similar

lines and placing the same below Order 21 Rule 106(3) of the present Code.

However, till such an amendment is brought under the First Schedule, the

provisions under Order 21 Rule 106(3) CPC as of now, alone would prevail

and the Execution Court has no power to condone the delay in execution

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proceedings under Order 21 CPC, after expiry of the statutory period of

limitation.

18. Till such time a decision is taken by the Rule Committee of this

Court on the administrative side, the following directions are issued under

Article 227 of the Constitution to ensure that no undue injustice is caused to

a genuine litigant:

[i] Order XXI Rule 105(2) deals with an order dismissing

the matter when there is no appearance for the party when the case

is called on for hearing. In such cases, if the party is represented by

counsel who reports no instructions or continually absents himself

from appearance leading to the inference that he has withdrawn

from the matter, the Court must ensure fresh notice is issued to the

party giving him reasonable time to make alternative arrangements

or to appear in person. If after such notice the party does not

appear on the next date of hearing or make alternative

arrangements with reasonable time, the Court may proceed to pass

an order under Order XXI Rule 105(2).

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[ii] If the matter is dismissed on a date not fixed for hearing

but on a date fixed for some other purpose, the order will not come

within the ambit of Order XXI Rule 105(2) (Ref: Radhakrishnan

v. State of Kerala, 2005 SCC OnLine Ker 589 : (2006) 1 KLT 28),

and Order XXI Rule 105(1) CPC.

[iii] It is also clarified that an order passed under Order XXI

Rule 105(2) is an order of dismissal for non-appearance and not

for any other reason. In Karuppa Gounder v Pongiyanna

Gounder, CRP (NPD) 1524 of 2018, the Executing Court invoked

Order XXI Rule 105(2) CPC to dismiss the Execution Petition on

account of the failure of the Commissioner to file his Report. It

was held by Hon’ble Justice R.Subramanian that the period of

limitation of 30 days under Order XXI Rule 106(3) CPC to set

aside an order under Order XXI Rule 105(2) CPC is only for

setting aside orders dismissing the petition for non-appearance and

not for any other reason. If the Execution Petition is dismissed for

any other reason, the same would be governed by Article 137 of

the Limitation Act, 1963, which prescribes a period of 3 years.

[iv] In any event, the dismissal for non-prosecution of an

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Execution Petition does not bar a fresh EP, provided the same is

filed within the period of limitation.

[v] An order under Order XXI Rule 105(3) CPC is an order

passed ex parte where the opposite party does not appear. Where

the opposite party does not appear, the Court may set him ex parte

and thereafter, proceed to hear the application and pass orders.

Order XXI Rule 105(3) CPC also says “the Court may hear the

application ex parte and pass such order as it thinks fit.” The

limitation prescribed under Order XXI Rule 106(3) CPC is to set

aside an order passed in consequence of the opposite party being

set ex parte. Thus, if the opposite party is set ex parte and if he

appears before the disposal of the petition and requests to have the

order setting him ex parte set aside, such an application will not

fall within Order XXI Rule 106(3) CPC, since an order setting the

opposite party ex parte is not an order under Order XXI Rule

106(3) CPC. It is only when an order is passed in the petition in

consequence of the opposite party being set ex parte, the

provisions of Order XXI Rule 105(3) & 106(3) stand attracted.

[vi] Order XXI Rule 106(3) CPC for setting aside an order

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passed under Order XXI Rule 105(3) CPC is 30 days from the date

of the order if notice was not served. This is because Order XXI

Rule 105(3) CPC states “Where the applicant appears and the

opposite party to whom the notice has been issued by the Court

does not appear….”. Thus, if notice is served and there is no

appearance, the opposite party cannot claim the benefit of Order

XXI Rule 106(3) CPC to have the 30 days computed from the date

of the order. Order XXI Rule 106(3) CPC itself makes it clear that

the benefit of having limitation running from the date of order

applies only in cases where notice is not served on the opposite

party.

[vii] There may be cases where the opposite party has

engaged a counsel who has absented himself frequently leading to

an inference that he has abandoned the matter. In C.Subramania

Mudali v Srinivasa Pillai, 1979 92 LW 662, it is observed as

follows :

“The record shows that learned counsel who had entered appearance for the auction-purchaser was absent in court when the case was called. It subsequently transpired that he had discontinued his profession and had put his decision

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into effect by making himself scarce from all law courts. Apparently, the client was not aware of these developments until long afterwards.

I like to imagine that lawyers practising in courts may have excellent reasons of their own for turning their back on their profession, renouncing their robes and shunning the Courts at any given moment. But where the clients are not informed of their decision beforehand so as to enable them to make alternative arrangements, the result might well be to leave them in the lurch, and where parties find themselves in a quandary on such occasions, it would be a proper exercise of the court's good conscience to redeem the litigants from the faults of the lawyers.”

To avoid such situations, where the Court finds that the opposite party was

initially represented by counsel who has thereafter not appeared on a day

fixed for hearing of the application, it would be prudent for the Court to

order notice to the party fixing an alternative date for hearing of the

application. If notice is served on the opposite party, and on the said date,

there is no appearance once again, the Court may proceed to pass orders

under Order XXI Rule 105(3) CPC.