CRP/6302/2026 of A.Raju Vs M.Gagan Bothra on 7 October 2026

ORDER

The Civil Revision Petition is filed, challenging the order passed by the Executing Court, dismissing the application filed by the petitioner, seeking to set aside the order, setting the petitioner ex parte in execution proceedings.

2. The respondent herein obtained an Arbitration Award against the petitioner to the tune of Rs.76,03,945.20/-. Later, he filed Execution Petition

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seeking recovery of the award amount by attachment and sale of the petition mentioned properties. The petitioner/Judgment Debtor was set ex parte in the said Execution Petition on 19.06.2025. Thereafter, he filed an application seeking to set aside the ex parte order. The said application was dismissed by the Executing Court and aggrieved by the same, the petitioner / Judgment Debtor has come before this Court.

3. The learned counsel appearing for the petitioner would submit notice in the Execution Petition was not served on the petitioner and service was effected only by way of paper publication. As soon as the petitioner acquired knowledge about the Execution petition, he filed the Execution Application seeking to set aside the order, setting the petitioner ex parte. The Executing Court, without appreciating the reasons given by the petitioner, erroneously dismissed the petition and hence, the petitioner sought for allowing of the revision by setting aside the order.

4. The respondent, who appeared in person would submit the very revision filed by the petitioner is not maintainable, as an appeal will lie from the order, rejecting an application under Order XXI Rule 106 of the Code of Civil Procedure. He would further submit that notice in the execution application was served on one Mr.Sathyanarayana and hence, the averments made in the affidavit, as if the petitioner was not aware of the Execution Petition earlier are

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not correct. Order XLIII of the Code of Civil Procedure deals with appealable orders. Order XLIII Rule 1(ja) of the CPC reads as follows: “1. Appeals from orders-

(a) …………………. [***]……………….

(c) …………………..

(d) ………………….. [***]……………….. [f]……………………. [***]………………... [***]………………...

(i) ……………………..

(j) …………………….

(ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule

(1) of rule 105 of that Order is appealable”

5. A perusal of the above provision would indicate an appeal will lie from the order, rejecting an application under sub-rule (1) of Rule 106 of Order XXI of C.P.C., only in cases, where the order passed in the original application, i.e., the application referred to in sub-rule (1) of Rule 105 of Order XXI of C.P.C., is appealable. In the case on hand, the petitioner was set ex parte in the main Execution Petition and any final order passed in the Execution Petition is not an appealable order. Therefore, the impugned order in this revision cannot be treated as an appealable order under Order XLIII Rule 1(ja) of C.P.C. Hence, the preliminary objection raised by the party-in-person is overruled.

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6. It is the specific case of the petitioner that notice in the Execution Petition was not served on him. A perusal of the impugned order would suggest that the notice sent to the petitioner was returned with an endorsement that the Judgment Debtor had vacated the premises and thereafter, steps had been taken under Order V Rule 20 of the Code of Civil Procedure for effecting substituting service by paper publication. Therefore, no personal service was effected on the petitioner and only paper publication was effected on 19.06.2025. The respondent/party-in-person would submit that the second notice sent to the petitioner was served on one Mr.Sathyanarayana. Unless there is material on record to suggest that the notice sent to the petitioner was served on him personally or that the notice was served on an adult member of his family, it cannot be treated as a good service. There is nothing on record to suggest that the above mentioned Mr.Sathyanarayana is a member of the petitioner’s family. In such circumstances, the contention raised by the respondent, as if the notice was served on the petitioner, cannot be accepted. When no personal service had been effected on the petitioner or any member of his family, the assertion made by the petitioner that he acquired knowledge about the Execution Proceedings only on 18.03.2026 has to be accepted in the absence of any other reliable evidence to the contrary. It is also submitted that admittedly the petitioner acquired knowledge about the Execution proceedings on 18.03.2026. However, the instant application has been filed only on 06.06.2026, well beyond the period of 30 days. Therefore, in view of Order XXI Rule 106 (3) of C.P.C., the

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application filed by the petitioner is time barred.

7. This Court in the case of Sundarammal and another Vs. Kanagaraj and another reported in 2025 SCC Online Mad 2980, held that the limitation of 30 days prescribed under Rule 106(3) of C.P.C., is applicable only in cases where there is a final order. In the case on hand, no final order has been passed in the main Execution Petition. The petitioner was simply set expate and the matter is kept pending. Therefore, in the light of the law laid down in the above mentioned case, the application filed by the petitioner is entertainable even if it is filed beyond the period of 30 days from the date of knowledge.

8. In the light of the above said discussion, the impugned order passed by the Executing Court needs interference in this revision petition. Accordingly, the Civil Revision Petition stands allowed and the impugned order dated 24.08.2026 passed in E.A.No.2 of 2026 in E.P.No.102 of 2023 by the Hon’ble III Additional District and Sessions Court, Tiruvallur at Poonamallee is set aside and the petitioner is permitted to participate in the Execution Proceedings.

9. Taking into consideration that the Execution Petition is of the year 2023, the Executing Court is directed to dispose of the Execution Petition as expeditiously as possible, preferably within the time limit fixed by the Apex Court in the case of Periyammal (Dead) through Lrs and Ors. Vs. V.Rajamani

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& Anr., reported in (2025) 9 SCC 568. No costs. Consequently, connected miscellaneous petition is closed. 07-10-2026 Index: Yes Speaking order Neutral Citation: Yes kak To The learned Judge, III Additional District and Sessions Court, Tiruvallur at Poonamallee.

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S.SOUNTHAR, J. kak CRP No. 6302 of 2026 07-10-2026

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