Madras High Court
T.Elangovan vs Subramaniyam on 17 October, 2025
2025:MHC:2405
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 07.10.2025 Order pronounced on : 17.10.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.No.769 of 2025
& CMP.No.4538 of 2025
T.Elangovan ... Petitioner
Vs.
1.Subramaniyam
2.Perumal Gounder
3.Ponnammal
4.Kaliyammal
5.Palanisamy
6.Kalishwaramoorthy @ Selvaraj ... Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to direct the First Appellate Court to admit the unnumbered I.A.No...
of 2023, filed by the petitioner under Order XLI Rule 21 of CPC, in
A.S.No.4 of 2014 on the file of the Sub-Court, Gobichettipalayam, thereby
dispose of the same on merits, with expeditious manner.
For Petitioner : Mr.S.Mukunth
Senior Counsel
for Mr.N.Krishnakumar
for M/s.Sarvabhauman Associates
For Respondents : Mr.A.V.Arun for RR1 to 3
No appearance for RR4 to 6
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ORDER
This revision petition has been filed to direct the First Appellate
Court to admit the unnumbered I.A.No... of 2023, filed by the petitioner
under Order XLI Rule 21 of CPC, in A.S.No.4 of 2014 on the file of the
Sub-Court, Gobichettipalayam.
2.The 6th defendant in O.S.No.375 of 2006 is the revision petitioner.
3.I have heard Mr.S.Mukunth, learned Senior Counsel for
Mr.N.Krishnakumar, for M/s.Sarvabhauman Associates, learned counsel for
the petitioner and Mr.A.V.Arun, learned counsel for the respondents 1 to 3.
4.Mr.S.Mukunth, learned Senior Counsel would submit that the
revision petitioner is a purchaser of the suit property from the defendants 4
and 5, who in turn, had purchased the property from the 3rd defendant, the
legatee of the mother of the parties to the suit. The suit had been filed by the
son of the testatrix, seeking partition claiming that the mother had died
intestate. The suit was dismissed, upholding the Will executed by the
mother. In the First Appeal, the respondents were all set ex-parte and the
appeal came to be allowed by the First Appellate Court.
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5.The learned Senior Counsel would further submit that the revision
petitioner was not served with notice in the First Appeal and therefore, in
order to seek re-hearing of the appeal on merits, an application was taken
out by the revision petitioner. However, the said application has been
returned as not maintainable, on the ground that the case was a contested
decree and had been disposed of on 18.01.2019. The learned Senior
Counsel, inviting my attention to the provisions of the Order XLI Rule 21 of
CPC, would contend that it is permissible for the Court to permit re-hearing.
He would therefore state that when it was the specific contention of the
revision petitioner that he was not put on notice in the First Appeal, the
Court ought to have entertained the application without returning the same
as one not being maintainable. He would further contend that the provisions
of Order XLI Rule 21 of CPC are in pari materia to provisions of Order IX
Rule 13 of CPC and therefore, there is no embargo for the Appellate Court
to permit re-hearing at the instance of the revision petitioner.
6.Per contra, Mr.A.V.Arun, learned counsel appearing for the
respondents 1 to 3 would submit that the revision petitioner has filed an
application to condone the delay of 1519 days in even filing the application
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to re-hear the appeal and that he is only a purchaser pending the suit. He
would refer to the provisions of Order XLI Rule 17 of CPC and contend that
in a case where the appellant alone appears and the respondent does not
appear, the Appellate Court is well within its powers to hear the appeal ex-
parte and therefore, when the appeal is heard ex-parte and the Appellate
Court has thought fit to reverse the findings of the trial Court and allow the
First Appeal, it should be construed as a judgment on merits or in other
words, a contested decree and therefore, the proper course of action for the
petitioner would have to be to prefer an appeal as against the judgment in
the Appeal Suit and not seek for re-hearing. In support of his contentions,
the learned counsel for the respondents 1 to 3 would rely on the decision of
the Hon'ble Supreme Court in Harbans Pershad Jaiswal (Dead) by Legal
Representatives Vs. Urmila Devi Jaiswal (Dead) by Legal Representatives,
reported in (2014) 5 SCC 723. He would therefore pray for dismissal of the
revision.
7.I have carefully considered the submissions advanced by the
learned Senior Counsel for the petitioner and the learned counsel for the
respondents 1 to 3.
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8.In order to decide this revision, it would be appropriate to extract
the relevant provisions of Order XLI Rule 17 and Order XLI Rule 21 are
extracted hereunder for easy reference:
“17.Dismissal of appeal for appellant's default.- (1)
Where on the day fixed or on any other day to which the
hearing may be adjourned, the appellant does not appear
when the appeal is called on for hearing, the Court may
make an order that the appeal be dismissed.
[Explanation.-Nothing in this sub-rule shall be
construed as empowering the Court to dismiss the appeal on
the merits]
(2) Hearing appeal ex parte.- Where the appellant
appears and the respondent does not appear, the appeal
shall be heard ex parte.
21.Re-hearing on application of respondent against
whom ex parte decree made.- Where an appeal is heard ex
parte and judgment is pronounced against the respondent, he
may apply to the Appellate Court to re-hear the appeal; and,
if he satisfied the Court that the notice was not duly served
or that he was prevented by sufficient cause from appearing
when the appeal was called on for hearing, the court shall
re-hear the appeal on such terms as to costs or otherwise as
it thinks fit to impose upon him.”
9.On a careful reading of the provisions extracted herein above, it is
no doubt evident that in the appeal, when the appellant alone appears and
the respondent does not appear, the appeal is to be heard ex-parte. In the
present case, the appeal has been heard consequent to none of the
respondents appearing in the appeal and the Appellate Court has reversed
the judgment and decree of the trial Court by allowing the appeal. It is
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thereafter that the revision petitioner has come with up with an application
under Order XLI Rule 21 of CPC, stating that he has not been served with
notice in the appeal and therefore, the judgment pronounced in the appeal is
to be only treated as an ex-parte judgment and decree and the petitioner is
entitled to apply for re-hearing of the appeal. It is only the said application
under Order XLI Rule 21 of CPC which has been returned by the First
Appellate Court. I am unable to approve the procedure adopted by the First
Appellate Court in returning the application under Order XLI Rule 21 of
CPC on the ground that the appeal has been disposed of on merits.
10.As already discussed, it is an admitted fact that none of the
respondents in the First Appeal chose to enter appearance and the Appellate
Court has decided the appeal, after hearing the appellant alone. No doubt,
Order XLI Rule 17(2) permits such hearing of the appeal ex-parte. Merely
because the appeal has been allowed, it cannot get the character of a
contested judgment and decree. In fact, any First Appeal, which is being
disposed, after hearing the appellant alone, would in that case has to be
necessarily treated as a contested decree, because the Court has to
independently apply its mind, based on the arguments advanced by the
appellant and thereafter, either dismiss the appeal or allow the appeal.
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11.The test is to whether the respondents were set ex-parte and they
had not participated in the hearing of the appeal. That is the import of Order
XLI Rule 21 of CPC as well. The phraseology employed in Rule 21 is
evidently pointing to permissibility of the respondent in the appeal to seek
re-hearing, provided he satisfies the Court that notice was not duly served
on the said respondent or that he was prevented by sufficient cause from
appearing, when the appeal was called on for hearing. Therefore, merely
because the appeal has been allowed, it does not get the character of a
contested decree. It would still remain an ex-parte judgment and decree and
the revision petitioner, who claims that he has not been served with any
notice in the First Appeal, is entitled to file an application for re-hearing of
the appeal under Rule 21 Order XLI of CPC.
12.Of course, re-hearing would be subject to only satisfaction of the
Appellate Court that the petitioner was not duly served with notice in the
appeal, which is the specific case, on which the petitioner has filed the
application before the First Appellate Court, while seeking re-hearing. The
Appellate Court ought not to have returned the application as not
maintainable on the ground that the appeal has been disposed of by a
contested judgment and decree.
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13.In Harban's case, (stated supra) the Hon'ble Supreme Court,
dealing with Order XLI Rule 17(2) of CPC and the Explanation to Order
XVII Rule 1 of CPC and referring to Rules 19 and 21, held that the appeal
should not be heard on merits in the absence of the appellant. The Hon'ble
Supreme Court was not dealing with the fact situation where the appeal had
been allowed, after hearing the appellant alone and one of the respondents
in the First Appeal had invoked Order XLI Rule 21 of CPC. Therefore, I do
not see this decision being of any use to this case. In view of the above, I am
inclined to set aside the order of the First Appellate Court.
14. In fine, the Civil Revision Petition is allowed. The First Appellate
Court shall number the application for condonation of delay in filing the
application under Order XLI Rule 21 of CPC and after giving an
opportunity to the respondents, the First Appellate Court shall decide the
application on merits and in accordance with law. It is open to the
respondents to raise all their contentions and objections, opposing the
condonation of delay application, by filing a counter, for which the First
Appellate Court shall give sufficient opportunity to the respondents in this
regard. There shall be no order as to costs. Connected Civil Miscellaneous
Petition is closed.
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15.Registry is directed to return the original affidavit and petition,
enclosed along with the typed set of papers, to enable the revision petitioner
to represent the same before the First Appellate Court.
17.10.2025
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
Index : Yes / No
ata
To
The Sub-Court, Gobichettipalayam.
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P.B. BALAJI,J.
ata
Pre-delivery order made in
17.10.2025
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