IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2022 CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR C.R.P.Nos.3728 & 3730 of 2022 and C.M.P.Nos.19678 & 19681 of 2022 Ravi ... Petitioner in both C.R.P's vs C.Veerabhadraiah ... Respondent in both C.R.P's Prayer in C.R.P.No.3728 of 2022: Civil Revision Petition is filed under Article 227 of the Constitution of India, pleased to set aside the fair and decretal order dated 08.03.2022 made in R.E.A.No.3 of 2021 in R.E.P.No.177 of 2021 passed by the learned Subordinate Judge, Denkanikottai, Krishnagiri District.

Prayer in C.R.P.No.3730 of 2022: Civil Revision Petition is filed under Article 227 of the Constitution of India, pleased to set aside the fair and decretal order dated 27.09.2022 made in R.E.A.No.1 of 2021 in R.E.P.No.177 of 2021 passed by the learned Subordinate Judge, Denkanikottai, Krishnagiri District.

For Petitioner : Mr.M.R.Jothimanian (in both C.R.P's)

C O M M O N O R D E R

C.R.P.No.3728 of 2022 is arising out of an order dismissing the petition filed by the revision petitioner seeking to set aside the exparte order dated 03.8.2018 in execution proceedings. C.R.P.No.3730 of 2022 is arising out of an order allowing the petition filed by the respondent decree holder seeking permission of the Court to disconnect the electricity service connection to the suit building to enable removal of the offending portions of the building as per the decree.

2. The respondent herein filed a suit for declaration, injunction and also for mandatory injunction seeking removal of portion of the building put up by the petitioner by encroaching portion of the suit property. The suit was decreed on 19.10.2016. It is stated by the learned counsel for the petitioner that aggrieved by the decree, the petitioner preferred an Appeal in A.S.No.3 of 2017 before the Additional District Court, Hosur. The said appeal was dismissed for default on 20.02.2018 and the petitioner had filed an application seeking restoration of the appeal. It is further submitted by the petitioner, in the mean time, the respondent filed an Execution Petition in E.P.No.177 of 2021 on the file of Subordinate Court, Denkanikottai, Krishnagiri District and the petitioner was set exparte in the execution proceedings on 03.08.2018 for his failure to appear before the Court. Subsequently, he filed an application to set aside the exparte order in R.E.A.No.3 of 2021 and also sought for reopening of E.P.

3. In the affidavit filed in support of the said petition, the petitioner had stated that though, he entered appearance in E.P, at the relevant point of time, he was affected by Jaundice and he had taken treatment from a doctor at Salem. He further averred that in view of his illness, he could not contact his counsel and take steps to set aside the exparte order immediately. Though, the petitioner was set exparte on 03.08.2018, the petition to set aside the exparte order was filed by him only on 30.06.2021 nearly after 2 years and 11 months.

4. A vague allegation in the affidavit filed in support of the petition that he was affected by Jaundice at the relevant point of time, may not be sufficient to explain the time gap of nearly 2 years and 11 months in filing the petition to set aside the exparte order. The Court below by relying on Order 21, Rule 106(3), C.P.C. dismissed the petition filed by the revision petitioner on the ground that he ought to have filed the petition within 30 days and any application filed to set aside the order beyond the period of 30 days cannot be entertained.

5. First of all, the petitioner has not produced any material to substantiate his statement of illness in the affidavit. Though, in his affidavit he had averred that for the illness of Jaundice, he had taken treatment from a doctor at Salem, he has not produced any doctor’s certificate or relevant medical records. It is also pertinent to note that the appeal filed by the petitioner challenging the decree passed against him was also dismissed for default