C.R.P.Nos.3728 and 3730 of 2022

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)

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C.R.P.Nos.3728 and 3730 of 2022

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

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C.R.P.Nos.3728 and 3730 of 2022

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

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C.R.P.Nos.3728 and 3730 of 2022

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