Madras High Court
G.Anandan vs R.Lakshmi Chamundeeswari on 30 June, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP NPD.Nos.2645 & 2646 of 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 30.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP Nos.2645 & 2646 of 2025
G.Anandan . . . Petitioner in both CRPs
Versus
1. R.Lakshmi Chamundeeswari
2. K.Shyamsundar . . . Respondents in both CRPs
PRAYER IN CRP.No.2645 of 2025: Petition filed under section 115 of
Code of Civil Procedure to allow the Civil Revision Petition and set aside the
Order dated 19.09.2023 in E.A.No.3 of 2023 in E.P.No.4407 of 2022 on the
file of the XXV Assistant City Civil Court, Chennai in O.S.No.5969 of 2015
on the file of the VII Additional City Civil Court at Chennai.
PRAYER IN CRP.No.2646 of 2025 : Petition filed under section 115 of
Code of Civil Procedure to allow the Civil Revision Petition and set aside the
Order dated 19.09.2023 in E.A.No.2 of 2023 in E.P.No.4407 of 2022 on the
file of the XXV Assistant City Civil Court, Chennai in O.S.No.5969 of 2015
on the file of the VII Additional City Civil Court at Chennai.
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For petitioner : Mr.T.V.Vineeth Kumar [in both CRPs]
COMMON ORDER
Challenge has been made to the Order of the Executing Court
dismissing the application filed to condone the delay of 282 days in filing a
petition to set aside the exparte Order dated 22.11.2022 passed against the
revision petitioner and the application filed to set aide the exparte Order, in
the present Civil Revision Petitions.
2.The suit in O.S.No.5969 of 2015 has been filed by the plaintiffs/
respondents for recovery of a sum of Rs.11,65,000/- against the petitioner and
the 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
22.11.2022. The decree holder filed Execution Petition in E.P.No.4407 of
2022 to enforce the decree. In the Execution Proceedings, even after receipt
of notice as the revision petitioner has not appeared, Order of arrest was
issued. At this stage, the revision petitioner has filed an application to set
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aside the exparte decree along with an application to condone delay in fling an
application to set aside the exparte decree.
3. The said applications have been opposed by the decree holders on
the ground that as the joint decree has been passed against the defendants, the
winding up of first judgment debtor company will not have any effect on the
second judgment debtor. It is further submitted that reasons assigned for non
appearance of the judgment debtor is false and these applications have been
filed only to drag on the execution proceedings. The Execution Court
dismissed the application by an order 19.09.2023 on the ground that the
reasons assigned by the judgment debtor for condonation of the delay is not
acceptable. 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 first defendant company has been wound up by an Order of this Court in
C.P.No.225 of 2011 and the winding up proceedings are in process and the
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respondent has to make his claim before the Official Liquidator who is taking
steps to bring the assets for sale and distribute to all the debtors and when such
proceedings are in process, a decree to execute can be done only before the
Official Liquidator.
5. Heard the learned counsel appearing for the petitioner and perused
entire materials available on record.
6. It is relevant to note 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. Hence, as the applications have not
been filed within 30 days as per Order 21 Rule 106 CPC, the delay cannot be
condoned.
7. 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
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history before the amendment and the issue behind the amendments brought in
by the Madras High Court in 1945 and 1972 and 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.
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8.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 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
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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 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.
9.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
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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 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.
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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 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
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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.
10.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 Amendment,
1972, has been repealed by virtue of Section 97 of the Amending Act.
11.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
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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 limitation.
12. 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
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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 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
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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 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
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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 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
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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. 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
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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.
13.In view of the above, these Civil Revision Petitions are dismissed
the impugned order dated 19.09.2023, in E.A.Nos.2 and 3 of 2023 in
E.P.No.4407 of 2022 in O.S.No.1355 of 2017 on the file of the XXV Assistant
City Civil Court, Chennai is confirmed. No costs.
30.06.2025
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Index : Yes / No
Internet: Yes
Speaking/non speaking order
vrc
To,
1. The XXV Assistant Judge,
City Civil Court, Chennai.
2. The VII Additional Judge,
City Civil Court, Chennai.
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N. SATHISH KUMAR, J.
vrc
CRP NPD Nos.2645 & 2646 of 2025
30.06.2025
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