Madras High Court
CRP/5377/2026 of Yunus Ali Khan @ Afzal Jan (Deceased) Vs Azeema Sultana (Deceased) on 8 October 2026
CRP No. 5377 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-10-2026
CORAM
THE HON'BLE MR. JUSTICE S. SOUNTHAR
CRP No. 5377 of 2026
and
CMP No.23306 of 2026
CNR: {HCMA010846592026}
Yunus Ali Khan @ Afzal Jan (Deceased)
Amanullah Khan @ Ayub Jan (Deceased)
1.Asadullah Khan,
Mohammed Ali Khan @ Aslam Jan (deceased)
2.Badarunissa @ Akhtar Jehan
Mallika (Deceased)
3.Askar Ali Khan
4.Zaheer Ahmed Khan
Humaira Begum (Deceased)
5.Rizwan
6.Ayesha Fathema
Khulsum Begum (Deceased)
7.Iqbal Ahamed Khan
8.Zahir Ahamed Khan
9.Sultan Ahmed Khan
10.Dilwar Ahamed Khan
CRP No. 5377 of 2026
11.Tabassum Begum
Mariam Bee (Deceased)
12.Meher Sultana
13.Asif Ali Khan
14.Safia
15.Ashraf Ali Khan
16.Nasir Ali Khan @ Altaf
17.Khayaz Ahmed Khan
18.Farhana Begum
19.Askar Ali Khan
20.Muneer Ahmed Khan
..Petitioner(s)
Vs
Azeema Sultana (Deceased)
1.B.Khallel Ahmed Khan
2.B.Zubair Ahmed Khan
3.Naseema Sultana
..Respondent(s)
Prayer: This Civil Revision Petition is filed under Section 11 of CPC, to set aside the order dated 05.03.2026 passed in the unnumbered I.A.SR.No. of 2026 in E.P.No.2804 of 2018 in O.S.No.12131 of 2010 on the file of the XXVIII Assistant Judge, Allikulam and dispose of the same on merits.
CRP No. 5377 of 2026
For Petitioner(s):
Ms.M.Mubena Almas
For Respondent(s):
Mr.K.Bijai Sunder for R1 to R3
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ORDER
This Civil Revision Petition is filed challenging the order dated 05.03.2026 returning application filed by the petitioners seeking to condone the delay of 305 days in filing counter affidavit in E.P.No.2804 of 2018.
2. The respondents herein filed a Suit seeking recovery of possession in O.S.No.12131 of 2010 on the file of the XIX Additional City Civil Court, Chennai and obtained a decree for possession on 03.03.2014. The said decree is put into execution in E.P.No.2804 of 2018. It is seen from the typed set of papers that delivery was ordered in the Execution Petition on 03.04.2025.
3. Thereafter, the petitioners herein filed an application seeking to condone the delay of 305 days in filing counter affidavit in the Execution Petition. The said application was returned by the Executing Court on 05.02.2026 as not maintainable. The petitioners re-presented the papers on 03.03.2026 stating that there was suppression of fact regarding the pendency of the First Appeal and hence, the application was maintainable. Again, the papers were returned raising objection with regard to the prayer mentioned in the application. Aggrieved by the same, the petitioners have come before this Court.
CRP No. 5377 of 2026
4. The learned counsel appearing for the petitioners would vehemently contended that, in the Execution Petition filed before the Executing Court, the respondents / decree holders suppressed the pendency of the First Appeal filed by the petitioners. Therefore, the order passed by the Executing Court is vitiated by fraud.
5. If the petitioners want to challenge the order passed by the Executing Court on the ground that the same is vitiated by fraud, they have to file an application before the concerned Court making necessary averments regarding the alleged fraud.
6. In the case on hand, the petitioners are seeking to condone the delay of 305 days in filing counter affidavit to the Execution Petition.
7. As stated above, the Execution Petition was filed in the year 2018. The petitioners were set ex parte and ultimately, delivery was ordered in the Execution Petition on 03.04.2025. After order of delivery in the Execution Petition, the petitioners are also not entitled to set aside the ex parte final order passed on 03.04.2025 as the same has not been filed within a period of 30 days as per Order XXI Rule 106 of CPC.
CRP No. 5377 of 2026
8. Therefore, the Trial Court rightly returned the application submitted by the petitioners. I do not find any error in the order of return made by the Executing Court. Hence, the Civil Revision Petition is dismissed. However, it is clarified that if the petitioners want to challenge the delivery order passed by the Executing Court on the ground of fraud, it is always open to the petitioners to file appropriate application before the concerned Court. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 08-10-2026 smv Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No To
1. The XXVIII Assistant Judge, Allikulam.
CRP No. 5377 of 2026
S.SOUNTHAR, J. smv CRP No. 5377 of 2026 08-10-2026