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 respondents 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.
6. 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 the amendment
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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.
7.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.
8.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 interpretation of the statute, but
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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, dated 14.07.2022] have followed the judgment in
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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.
9.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.
10.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
proceedings under Order 21 CPC, after expiry of the statutory period of
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limitation.
11. 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).
[ii] If the matter is dismissed on a date not fixed for hearing
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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
Execution Petition does not bar a fresh EP, provided the same is
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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
passed under Order XXI Rule 105(3) CPC is 30 days from the date
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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
into effect by making himself scarce from all law courts.
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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.
12.In view of the above, this Civil Revision Petition is dismissed the
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impugned 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 on the file of the XXV Assistant City Civil
Court, Chennai is confirmed. No costs. Consequently, connected
miscellaneous petition is closed.
27.06.2025
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Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation : Yes / No
To
The XXV Assistant Judge,
City Civil Court, Chennai.
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N. SATHISH KUMAR, J.
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27.06.2025
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