CRP/4221/2026 of M.Gunaseelan Vs S.Nagarajan on 25 September 2026

ORDER

The decree holder/plaintiff is the revision petitioner, challenging the order in REA. No.2 of 2016, in and by which the application filed by the respondent/judgment debtor has been allowed by the Executing Court, permitting subpoena to be issued to the Court Ameen to appear and give evidence with regard to effecting of summons in the suit.

2. I have heard Mr.P.Valliappan, learned Senior Counsel for M/s.P.V.Law Associates and Mr.Avinash Wadwani, learned counsel for Mrs.V.Srimathi, learned counsel for the respondent.

3. The learned Senior Counsel Mr.P.Valliappan, would contend that the petitioner, as plaintiff, filed a suit in O.S. No.38 of 2006, for specific performance of an agreement of sale dated 12.11.2004 and in the said suit, despite entering appearance and filing a written statement, the respondent remained exparte, which resulted in an exparte decree being passed on 28.02.2013. He would further contend that after a period of two years, the respondent took out an application under Section 5 of the Limitation Act, seeking condonation of a delay of 731 days in I.A. No.365 of 2015, in filing the petition to set aside the exparte decree. Mr.P.Valliappan, learned Senior Counsel would further state that the application was dismissed and the revision challenging the said order was also dismissed in CRP. No.4058 of 2023. Thereafter, according to Mr.P.Valliappan, Senior Counsel in order to protract the proceedings and deny the fruits of the decree to the petitioner, the respondent filed a Section 47 application, questioning the executability of the decree.

4. Mr.P.Valliappan, learned Senior Counsel would further state that pending the Section 47 application, REA. No.2 of 2026 was taken out by the respondent, to summon the Court Bailiff, one Mr.Balakrishnan, to speak about the service of summons being effected in the suit. Mr.P.Valliappan, learned Senior Counsel would further state that it is the case of the respondent himself that he was abroad at the relevant point of time and therefore, it was not necessary for the Court Bailiff to be examined and by even production of the Passport, the respondent can establish that he was not in India and that there was no proper service of summons on the respondent in the suit. It is also his contention that the application has been filed only to protract the proceedings knowing fully well that the whereabouts and the correct address of the then Court Ameen Balakrishnan, may not be available and the proceedings would be lingering on for further time, even for effecting service on the Court Ameen. He would further contend that the decree was passed way back in the year 2013 and sale deed has also been executed in favour of the revision petitioner and the respondent is only delaying handing over possession to the petitioner, by filing some application or the other. He would also take me through the prayers made in the Section 47 Application and contend that prayers could not even been maintained in a Section 47 application.

5. Per contra, Mr.Avinash Wadhwani, learned counsel for the respondent would state that the Executing Court has rightly allowed the application for issuing subpoena for the purposes of examining the then Court Ameen, one Mr.Balakrishnan, finding that it will throw light on the fact whether there was proper service of summons in the suit. He would further state that no prejudice would be caused to the revision petitioner, if such subpoena notice is issued to the then Court Bailiff as it would only aid the Court in deciding the Section 47 Application. He would therefore pray for the dismissal of the revision petition.

6. I have carefully considered the submissions advanced by the learned Senior Counsel Mr.P.Valliappan and the learned counsel for the respondent, Mr.Avinash Wadhwani and I have also gone through the records.

7. It is not out of place to mention that in the application filed seeking condonation of delay of 731 days to set aside exparte decree, the very same reasons were assigned by the respondent that he was not served with summons and therefore, he must be given an opportunity to contest the suit for specific performance. The Trial Court dismissed the condone delay application finding that no sufficient cause was made out by the respondent. The said order was challenged before this Court in CRP. No.4058 of 2023. Even in the said revision, it was the contention of the petitioner that the respondent/defendant had gone abroad and therefore, he was not aware of the exparte decree. This Court finding that in a similar suit for specific performance against the respondent/defendant himself, filed by the petitioner as plaintiff therein also, the defendant was set exparte and the attempt to set aside the exparte decree along with an application to condone delay had been dismissed by the Trial Court, and as against the same, CRP. No. 4641 of 2015, was filed and also came to be dismissed on 21.04.2021, disbelieving the case of the petitioner and also finding that the defendant was delaying the proceedings. The relevant paragraphs of the said order in CRP. No.4058 of 2023, are extracted usefully:- "7. Further, it is also brought to the notice of this Court that the respondent/plaintiff in a similar suit in respect of the similar relief of specific performance against the petitioner/defendant, wherein, in that suit also, the defendant was originally set exparte and application to set aside the same was allowed and thereafter, once again was set exparte vide decree dated 28.02.2013 and had taken up an application in I.A.No.363 of 2015 to condone the delay of 731 days in filing the petition to set aside the exparte decree and the same was dismissed vide order dated 21.04.2021. Against which revision was filed before this Court in CRP.No.4641 of 2015. This Court vide detailed order dated 21.04.2021 disbelieved the contention of the petitioner/defendant and has held that defendant had been delaying the process of trial and the conduct of the petitioner does not seems to be bonafide. Against the order of this Court, Special Leave Petition was also filed in SLPNo.14370 of 2021 before the Hon'ble Supreme Court and the appeal was also dismissed vide order dated 20.09.2021. In the said application also same reasons assigned to condone the delay of 731 days in filing the application. Reason assigned was not believed by this Court, Special Leave Petition filed in this regard also dismissed. Therefore, in the connected suit, same reasons cannot be accepted."

8. In the present suit, the attempt to set aside the exparte decree has already become final and therefore, firstly I do not see any real purpose in seeking permission to examine the Court Bailiff, who had effected summons in the suit. This may have been an exercise that could have been undertaken in the condone delay application or in the setting aside application (Application to set aside the exparte decree). However, when the decree has attained finality and the attempt to set aside the exparte decree has also been unsuccessful, I am unable to see how the respondent can be permitted to re-open the issues that had attained finality, by seeking to examine Court Bailiff who effected service of summons on the defendant in the suit for specific performance. The reasoning of the Executing Court that the defendant should be given an opportunity to establish that he has not been served with summons is absolutely perverse, especially after being put on notice about the unsuccessful attempts made by the respondent to have the exparte decree set aside with the dismissal of the application for condonation of delay.

9. In the teeth of the order passed by this Court in CRP. No.4058 of 2023, especially relying on the other revision between the same parties in CRP. No.4641 of 2015, when the issue of service of summons is no longer open to be agitated by the respondent/defendant, the Executing Court ought not to have entertained R.E.A. No.2 of 2026. Further as rightly pointed out by Mr.P.Valliappan, learned Senior Counsel, I find that in REA. No.6 of 2023, the relief sought for in the Section 47 CPC Application are as follows:- @ 1/nkw;go mry ; tHf;fpy ; fle;j 28/02/2013y; Vw;gl;Ls;s xUjiyg;gl;r jPh;g;ghizia uj;J bra;Jk;. 2/jhth

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10. I am unable to see how any of these prayers can be sought for under Section 47 of the CPC. None of these prayers pertain to execution, discharge or satisfaction of the decree. The respondent is repeatedly attempting to agitate the very same contentions that were raised by him in the earlier round of litigation, while attempting to set aside the exparte decree, by contending that there has

been no proper service of summons on him in the suit. In fact, not only in the suit, but also in a similar suit as well, the very same contentions taken were rejected and the matter has attained finality upto the Hon’ble Supreme Court. Thus, the very Section 47 CPC application itself is a clear abuse of process and the delay has caused serious injustice to the decree holder, who has become entitled to a decree for specific performance way back in the year 2013. The attempts made by the respondent by taking out such frivolous and vexatious application is nothing but an attempt to scuttle the legitimate rights of the successful decree holder.

11. The conduct of the respondent in these proceedings and also in the earlier revision petitions clearly go to show that the respondent is going all out to deny the fruits of the decree to the revision petitioner. Therefore, exercising extraordinary power under Article 227 of Constitution of India, especially in the light of the reliefs sought for in the Section 47 Application and the grounds raised in the said application being only a re-agitation of concluded issues upto the Hon’ble Supreme Court, I find that the respondent cannot hold the petitioner for ransom by taking out such an application and prolong the agony of the decree holder, who has become entitled to a decree for specific performance as early as in 2013, in O.S. No.38 of 2006.

12. In such circumstances, I have no hesitation, while allowing this Civil Revision Petition setting aside the order of R.E.A. No.02 of 2026, but also to suo motu, exercise revisional power under Article 227 of the Constitution of India, by dismissing the Section 47 Application, which is clearly without any merit and a sheer abuse of process of law to defeat and deny the fruits of the decree in favour of the petitioner.

13. In the result, this Civil Revision Petition is allowed and R.E.A. No.02 of 2026 as well as R.E.A. No.6 of 2023 are dismissed. The Executing Court, shall dispose of REA. No. 62 of 2014 and also E.P. No.53 of 2014, within a period of two (2) months from the date of receipt of the copy of the order. No costs.

25-09-2026 Index: Yes/No Speaking order/Non Speaking Order Neutral Citation: Yes/No RKP To The Principal Subordinate Judge, Dharmapuri.

P.B.BALAJI, J. RKP Pre-delivery Order in CRP. No.4221 of 2026 25-09-2026