Madras High Court
N.K.A. Wahab & Co vs D. Senthilkumar on 5 March, 2025
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
CRP No. 911 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05-03-2025
CORAM
THE HONOURABLE MR JUSTICE A.D.JAGADISH CHANDIRA
CRP No. 911 of 2025
and CMP No.5296 of 2025
1. N.K.A. Wahab & Co.,
Rep. by its partner, K.A. Sulthan Hameed,
S/o. N.K. Abdul Wahab,
No.10/380, Palakad Main Road, Petitioner
Kuniyamuthur, Coimbatore District - 641 008.
Vs
1. D. Senthilkumar
Rep. by Power Agent, D. Selvam.
2. S. Srinivasan
3. Nirmala
4. Ramesh
5. Kemburaj
6. Sheela
7. G. Madhan
8. G. Prasanth
9. M/s.Indian Oil Corporation Limited,
Having registered office at No.G9,
Ali Yavar Jung Marg, Bandra East, Mumbai – 400 051.
Divisional Office at Indian Oil Bhavan,
No.8/1079, Avinashi Road, Coimbatore District. Respondents
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1/6
CRP No. 911 of 2025
PRAYER : Civil Revision Petition filed under Section 115 of Civil Procedure
Code pleased to set aside the docket order dated 28.01.2025 made in E.A.No.1
of 2025 in E.P.No.111 of 2024 in O.S.No.329 of 2016 on the file of the learned
III Additional District Judge, Coimbatore.
For Petitioner : Mr.A.M.Packianathan Easter
For R9 : Mr.R.Sreedhar
ORDER
This Civil Revision Petition has been filed against the docket order
passed by the III Additional District Court, Coimbatore, in E.A.No.1 of 2025 in
E.P.No.111 of 2024 in O.S.No.329 of 2026, on 28.01.2025.
2. The brief fact of the case is as follows :-
2.1. Respondents 1 to 8 had filed a suit in O.S.No.329 of 2016 for
ejectment against the 9th respondent. The suit was resisted by the 9th respondent
and he had filed a counter claim along with the written statement. In the written
statement, the 9th respondent has taken a plea of non-joinder of the petitioner,
who is a dealer of the 9th respondent running a petrol bunk, as a necessary party,
however, the suit came to be decreed by a judgment dated 02.06.2023.
2.2. Against the same, the 9th respondent has preferred appeals in
A.S.Nos.622 & 369 of 2024 before this Court. In A.S.No.622 of 2024, the
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petitioner has filed a miscellaneous petition in C.M.P.No.27878 of 2024 seeking
to implead him in the proceedings. However, the Division Bench of this Court,
by orders dated 27.01.2025, dismissed the appeals as well as the impleading
petition.
2.3. While so, respondents 1 to 8 have filed an execution petition in
E.P.No.111 of 2024 before the III Additional District Court, Coimbatore,
seeking to vacate and deliver vacant possession of the property.
2.4. The petitioner, who being the dealer under R9 running a Petrol
bunk in the said property, had filed an application under Order XXI Rule 97 of
CPC in E.A.No.1 of 2025 seeking to record the resistance/obstruction raised by
the petitioner, to adjudicate the same and to dismiss the execution proceedings.
However, the Executing Court, after numbering the petition, has rejected the
same on 28.01.2025 holding that the petitioner has not right to invoke Order
XXI Rule 97 of CPC. Challenging the same, the present Civil Revision Petition
has been filed.
3. Learned counsel appearing for the petitioner submitted that the court
having numbered the petition ought to have adjudicated the same on merits,
whereas, the executing Court, after numbering the petition, rejected the petition,
which is against law. He further submitted that the petitioner is running a petrol
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bunk since 1971 holding the dealership under the 9th respondent and the
petitioner is also taking steps to challenge the order passed by the Division
Bench of this Court in C.M.P.No.27878 of 2024 in A.S.No.622 of 2024 before
the Hon'ble Apex Court. He also submitted that the executing Court by a cryptic
and unreasoned order rejected the petition in violation of the procedure
contemplated under the CPC. He further submitted that the petitioner has got a
good case on merits and he is facing the threat of eviction without any hearing
and thereby, he prayed to set aside the docket order passed by the executing
court in E.A.No.1 of 2025 dated 28.1.2025 and to direct the executing court to
hear and dispose the same on merits by following the procedure.
4. Mr.R.Sreedhar, learned counsel takes notice for the ninth respondent
submitted that the ninth respondent is also taking steps to file SLP before the
Hon'ble Apex Court, against the common judgment passed by the Division
Bench of this Court in A.S.Nos.622 & 329 of 2024 on 27.01.2025.
5. Having heard the learned counsel appearing for both the petitioner and
9th respondent and perused the materials available on record, this Court is of the
view that the executing Court, having numbered the application, ought to have
adjudicated the application in accordance with the provisions under Order XXI
Rule 97 of CPC, whereas, the executing Court, without following the same, has
rejected the application, which is not proper. Therefore, this Court is inclined to
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set aside the docket order rejecting the application filed under Order XXI Rule
97 of CPC.
6. Accordingly, the Civil Revision Petition stands allowed. The docket
order passed by the learned III Additional District Judge, Coimbatore on
28.1.2025 in E.A.No.1 of 2025 in E.P.No.111 of 2024 in O.S.No.329 of 2016, is
hereby set aside and the matter is remitted back to the Executing Court. The
learned III Additional District Judge, Coimbatore, shall decide the application in
E.A.No.1 of 2025 in accordance with law following the procedures
contemplated under the Civil Procedure Code. Consequently, miscellaneous
petition is closed. No costs.
05-03-2025
ham
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
Note : Registry is directed to issue order copy by 06.03.2025
and return the original papers to the petitioner's counsel forthwith.
To
1. The III Additional District Judge, Coimbatore.
2. The Section Officer, VR Section, High Court of Madras
3. The Section Officer, ER Section, High Court of Madras
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A.D.JAGADISH CHANDIRA J.
ham
05-03-2025
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