(Common Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside the fair and decreetal order dated 22.12.2023 in E.A.Nos.24 & 2025 of 2022 passed by the I Additional District Court, Tiruvallur.)

Common Order

1. The revision petitioner, aggrieved by the trial Court condoning the delay and setting aside the ex-parte order in execution proceedings, at the instance of the judgment debtors, is the revision petitioner.

2. I have heard Mr.A.Navaneethakrishnan, learned Senior Counsel for Mr.G.Jai Sankar Srinivas, learned counsel for the petitioner and Mr.Ravikumar Paul, learned Senior Counsel for Mrs.S.K.Inthu, learned counsel for the respondents in both the revision petitions.

3. Mr.A.Navaneethakrishnan, learned Senior Counsel appearing for the petitioner in the both the revision petitions would submit that the executing Court has no power to condone delay beyond the prescribed period of 30 days under the Code of Civil Procedure and he would rely on the recent decision of this Court in Sundarammal and others Vs. Kanagaraj and another, reported in 2025 (4) CTC 225, where this Court has distinguished the earlier judgments, citing the decision of the Hon'ble Supreme Court in Hindustan Construction Co. Ltd., and another Vs. Union of India and others, reported in 2019 (6) CTC 883 and held no uncertain terms that the the proviso introduced to Order XXI Rule 105 of CPC by Madras High Court Amendment, 1972, has the effect of being repealed by virtue of Section 97 of the Amending Act and consequently, the executing Court has no power to condone delay, beyond the period of 30 days, which is provided under Order XXI Rule 106(3) of CPC.

4. The learned Senior Counsel, Mr.A.Navaneethakrishnan, would therefore submit that the very applications were not maintainable and the executing Court has erroneously exercised discretion in favour of the respondents and proceeded to allow the applications. He would also refer to the impuged orders in this regard. He would also rely on the decision of the Hon'ble Supreme Court in Shivamma Vs. Karnataka Housing Board and others, reported in 2025 SCC Online SC 1969, where the Hon'ble Supreme Court has elaborately discussed the position with regard to Section 5 of the Limitation Act. He would also submit that substantiating the averments in the affidavit, the respondents have not adduced any evidence and no proof affidavit has been filed and in the absence of the same, the Court below ought not to have exercised discretion in favour of the respondents by condoning the delay.

5. Per contra, Mr.Ravikumar Paul, learned Senior Counsel appearing for the respondents in both the revision petitions would submit that even though the recent judgment of this Court holding that Section 5 of the Limitation Act is not available in execution proceedings, the learned Senior Counsel would submit that no final orders have been passed in the applications, which are still pending before the executing Court. It was only a case where the petitioners, who were impleaded as legal representatives of one of the Directors were set ex-parte in execution applications, pending before the executing Court and in order to set aside the said ex-parte orders alone, the applications were filed. The learned Senior Counsel would further state that there would not even a necessity for the petitioners to have invoked Section 5 of the Limitation Act in the present case since the applications in which the respondents had been set ex-parte are still pending before the executing Court and no orders have been passed. He would therefore pray for dismissal of the revisions.

6. I have carefully considered the submissions advanced by the learned Senior Counsel on either side. I have also gone through the impugned orders passed by the executing Court allowing the applications filed by the respondents.

7. No doubt, there has been an application in E.A.No.24 of 2022, seeking condonation of delay of 154 days in filing the set aside petition in E.A.No.6 of 2022. The Court below, considering that E.A.No.48 of 2017, which was filed by the 1 st judgment debtor to set aside the ex-parte attachment order and the decree holder had filed E.A.No.6 of 2022, seeking review of the order passed in E.A.No.48 of 2017, no prejudice would be caused to the decree holder in permitting the petitioner to contest the review application.

8. It is the case of the respondents that they did not file counter in E.A.No.6 of 2022 and the 5 th judgment debtor, under whom, the respondents' claim was sick and after his demise, the legal representatives were unable to contact the lawyer and they had to engage a different counsel to even take out the applications to condone the delay and set aside the ex-parte order. The trial Court was conscious of the fact that this Court has held that Section 5 of the Limitation Act cannot be invoked in execution proceedings. However, taking note of the fact that E.A.No.6 of 2022 is only a review application and the same is pending and no final orders have been passed and no prejudice would be caused by permitting the respondents also to participate in the enquiry, the applications were allowed.

9. It is therefore a case where the respondents sought for condoning delay and to set aside the ex-parte order passed in E.A.No.6 of 2022 alone. Admittedly, E.A.No.6 of 2022 is pending and no final orders have been passed in the said EA, that has been filed only by the petitioner/decree holder. In such circumstances, I do not see how the petitioner is in any way prejudiced by permitting the respondents also to participate in the enquiry along with the other judgment debtors, who are none other than the other Directors of the same Company.

10. No doubt, this Court in Sundarammal's case, cited supra, held that Section 5 cannot be invoked to set aside orders passed ex-parte, invoking Section106, seeking to set aside the order passed ex-parte under Section Sub Rule 2 of Rule 105 or Sub Rule 3 of Rule 105. Order XXI Rule 105 deals with hearing of the application by the executing Court. Under Order XXI Rule 105(3), when the applicant appears and the opposite party, despite service of notice, has not appeared, then the executing Court may hear the application ex-parte and pass orders as it thinks fit.

11. Here, admittedly, the said situation has not even arisen, since the other respondents in E.A.No.6 of 2022 are contesting the application and no orders contemplated under Order XXI Rule 105(3) have been passed. Therefore, I do not see how the application filed by the petitioner is not maintainable. In fact, as rightly contended by the learned Senior Counsel for the respondents, there may not have been a requirement to even invoke Section 5, as the application in E.A.No.6 of 2022 was very much pending and merely an application to set aside the ex-parte order would have been sufficient. Therefore, in such circumstances, I do not see any error committed and moreso, no prejudice has been caused to the revision petitioner, by the executing Court allowing the applications, which are under challenge in the present revision petitions.

12. Further, the Court below has exercised discretion, finding that sufficient cause has been shown by the respondents and I do not find any perversity or impropriety in the said findings arrived at by the executing Court, warranting interference in revision. For all the above reasons, there is no merit in the revisions.

13. In fine, the Civil Revision Petitions are dismissed. No costs. Connected Civil Miscellaneous Petitions are closed.