C.R.P.(MD) No.457 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26.07.2023

CORAM

THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI

C.R.P.(MD) No.457 of 2023

and

C.M.P.(MD) No.2182 of 2023

G.R.Vishaga Guru

... Petitioner

Vs.

1.Premasekaran

2.Jeyabaskaran

... Respondents

Prayer:- These Civil Revision Petition filed under Section 115 of the Code of

Civil Procedure, 1908, to set aside the fair and decreetal order made in E.A.No.

1 of 2022 in E.P.No.4 of 2022 in O.S.No.5 of 2009 by the District Munsif

Court, Palani, dated 07.11.2022.

For Petitioner

: Mr.D.Venkatesh

For Respondents

: Mr.Lenin Kumar

O R D E R

This Civil Revision Petition is preferred by the petitioner to set aside the

fair and decreetal order dated 07.11.2022 passed by the District Munsif Court,

Palani in E.A.No.1 of 2022 in E.P.No.4 of 2022 in O.S.No.5 of 2009.

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C.R.P.(MD) No.457 of 2023

2. The respondents herein had filed O.S.No.5 of 2009 before the District

Munsif Court, Palani for permanent injunction restraining the petitioner and his

father from disturbing their possession and making construction and for

mandatory injunction to remove the compound wall constructed by the

petitioner. The suit was decreed in favour the respondents/plaintiffs on

22.10.2021, against which, the petitioner preferred an appeal before the Sub

Court, Palani in A.S.No.46 of 2021 which is pending and no stay is said to

have been granted.

3. Meanwhile, the respondents filed Execution Petition under Order 21

Rule 11 of the Code of Civil Procedure, 1908, before the District Munsif

Court, Palani in E.P.No.4 of 2022, in which, an exparte order was passed by

the Execution Court on 21.04.2022.

4. Thereafter, the petitioner moved an application before the District

Munsif Court, Palani in E.A.No.1 of 2022 to set aside the exparte order dated

21.04.2022 passed by the Execution Court which was dismissed by the

Exeuction Court vide impugned order dated 07.11.2022 on the ground that the

said E.A. was not maintainable as it was filed after lapse of 26 days, against

which, the present Civil Revision Petition is preferred.

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C.R.P.(MD) No.457 of 2023

5. According to the petitioner, the petitioner filed E.A. under Order 21

Rule 106 of the Code of Civil Procedure, 1908 to set aside the exparte order

dated 21.04.2022, within a period of 30 days from the date of his knowledge. It

is submitted that under Order 21 Rule 106(3) of the CPC, an application under

Sub-Rule (1) shall be made within 30 days from the date of the order, or where,

in the case of an exparte order, the notice was not duly served, within thirty

days from the date when applicant had knowledge of the order.

6. The learned counsel for the petitioner would submit that the exparte

order was passed on 21.04.2022, but, the same came to the knowledge of the

petitioner only on 13.06.2022 and immediately the petitioner filed E.A.No.1 of

2022 which is very well within time. However, the learned District Munsif,

Palani dismissed the E.A. by stating that E.A. was filed after lapse of 26 days.

7. The learned counsel for the petitioner would further submit that the

learned District Munsif, Palani has erroneously dismissed the E.A without

considering the plea made by the petitioner that no notice was served on him in

the Execution Proceedings and his father was hospitalized at Appollo Hospital,

Madurai for Paralysis attack and after treatment, when he came came to the

house, he got knowledge about the notice in the Execution Proceedings.

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C.R.P.(MD) No.457 of 2023

8. The specific contention of the petitioner is that Article 123 of the

Limitation Act, 1963 provides 30 days period for an application to be filed to

set aside the exparte decree/order passed from the date of th