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2019 Supreme(Mad) 1854
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
The Commissioner Kancheepuram Municipality Kancheepuram - Petitioner
Versus
C.R. Baskaran - Respondent
C.R.P. No. 3427 of 2019 & C.M.P. No. 22536 of 2019
Decided On : 23-10-2019
Advocate Appeared:
For the Petitioner:P. Srinivas, Advocate.
The main legal point established is that when there is an alternative remedy available under the law, it must be exhausted before approaching the court with a revision petition.
Headnote:
Order 21 Rule 105 - Exparte Order - The court dismissed the revision petition against the exparte order of attachment, stating that the revision petitioner should have filed an application under Order 21 Rule 106 of C.P.C. to set aside the exparte order before approaching the court.
Fact of the Case:
The revision petition was filed against the exparte order of attachment passed by the Execution Court under Order 21 Rule 105.
Finding of the Court:
The court dismissed the revision petition, stating that the revision petitioner should have first filed an application under Order 21 Rule 106 of C.P.C. before approaching the court.
Issues: Revision against exparte order of attachment, alternative remedy under Order 21 Rule 106 of C.P.C.
Ratio Decidendi: The court held that when there is an alternative remedy under Order 21 Rule 106 of C.P.C., the revision petitioner cannot approach the court without exhausting the same.
Final Decision: The Civil Revision Petition was dismissed, and the connected miscellaneous petition was also dismissed. The revision petitioner was granted a week's time to approach the Court below by filing an appropriate petition under Order 21 Rule 106 of C.P.C.
JUDGMENT :
(Prayer: Civil Revision Petition under Section 115 of C.P.C., against the docket order dated 30.08.2019 passed in E.P.No.62 of 2018 on the file of the Additional District and Sessions Judge II, Kancheepuram.)
This revision has been filed against the docket order dated 30.08.2019 passed in E.P.No.62 of 2018 on the file of the Additional District and Sessions Judge II, Kancheepuram, where the revision petitioner / Judgment Debtor has been set exparte and order of attachment has been passed.
2. Heard Mr. P. Srinivas, learned counsel appearing on behalf of the revision petitioner.
3. The impugned order was passed by the Execution Court under Order 21 Rule 105, as under Sub-rule (3) of Rule 105, if the opposite party, may be a judgment debtor or a third party, on receipt of summons and entered appearance, had not appeared on the date of hearing, the Court will set him exparte. That is how the impugned order seems to have been passed by the Execution Court on 30.08.2019, where admittedly the revision petitioner did not appear before the Execution Court.
4. If at all any such order is passed, setting the respondent / judgment debtor in the execution proceedings exparte, in order to set aside the said order, application can be filed by such party against whom exparte order was passed, by giving plausible reasons before the execution court itself under Order 21 Rule 106 of C.P.C.
5. Therefore, when there is an alternative remedy under Order 21 Rule 106 of C.P.C., without exhausting the same, the revision petitioner cannot approach this Court. Hence, this revision petition is liable to be rejected at the admission stage itself.
6. In view of the same, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. However, a week-s time from the date of receipt of a copy of this order is granted to the revision petitioner to approach the Court below by filing appropriate petition as indicated above and till such time, the impugned order shall not be given effect to. It is made clear that, within the said time if no such application is filed by the revision petitioner herein in the Court below, there is no impediment for the Court below to execute the impugned order passed by the said Court.
