CRP/5751/2026 of Yogesh.M.U Vs EVP Rajeshwari Palace on 9 September 2026

ORDER

Heard learned counsel for the petitioners, Mr.B.Vijay and Mr.R.Murali, learned counsel for the respondent.

2. The grievance of the revision petitioners is that without disposing of the Order 21, Rule 106 CPC, filed by the petitioners, the Executing Court is hastily passing final orders in the Execution Petition, in fact, delivery has already been ordered and an attempt has been made to take delivery of possession from the revision petitioners. The learned counsel Mr.B.Vijay, would bring to my notice that even Section 34 Application under the Arbitration and Conciliation Act, 1996, is pending in Arbitration O.P. No.480 of 2025, and the same is yet to be disposed of finally. Though Mr.Vijay, learned counsel pointed out that the Application under Section 9 has been filed in O.A. No.935 of 2026, seeking interim injunction in the said Arbitration Proceedings, the petitioners have been advised to withdraw the said application and the same is recorded.

3. Mr.R.Murali, learned counsel for the respondent/decree holder would firstly contend that the petitioners' application to set aside the exparte order in the Execution Proceedings is beyond the period of 30 days and therefore, the same is not maintainable, in view of the decision of this Court in Sundarammal and Another Vs. Kanagaraj and another, reported in (2025) SCC Online Mad, 2980. He would also bring to my notice that in a revision petition, at the instance of the decree holder, I had already directed the Executing Court to dispose of the EP, expeditiously, on or before 30.09.2026. Admittedly, as on that date, the present intervening circumstances were not present. Even according to the learned counsel for the respondent, these applications were not pending on the date on which the revision was disposed of. Therefore, the direction cannot be now taken advantage of the respondent/decree holder to state that the petitioners should be denied such opportunity.

4. Insofar as the decision in Sundarammal's case, (referred herein supra) though this Court held that an Application under Order 21, Rule 106(3) CPC, cannot be maintained beyond the period of 30 days and even a Section 5 Application is not maintainable, in the said judgment, this Court has carved out exceptions, in which cases, the petitioners seeking the exparte order to be set aside, should be heard. It is therefore, for the Executing Court to see whether the present petitioners have made out a case within the said exceptions that have been carved out in the Sundarammal's case, (referred herein supra). In fact, based on the ratio laid down in Sundarammal's case, (referred herein supra), the High Court has also issued a notification where also the exceptions have been highlighted and reiterated.

5. In the light of the above, the Executing Court ought to have disposed of the Application under Order 21, Rule 106 CPC, before passing any final orders in the Execution Petition and one hand, without passing any orders in the Order 21, Rule 106 petition, the Executing Court has erroneously proceeded to order delivery. Now taking advantage of the same, the respondent has also filed an Application to advance the hearing along with Applications for police aid and break open.

6. Mr.Murali, learned counsel for the respondent inviting my attention to the previous report to contend that portion of the premises has already been taken possession from the petitioner on 27.08.2026. The Bailiff's report also evidences the said contention of the learned counsel for the respondent. However, curiously, in the affidavit that has been filed subsequent to the attempt made for taking delivery of possession on 27.08.2026 i.e., on 28.08.2026, the respondent/decree holder, has not mentioned that portion of the premises have already been taken possession from the petitioners. The Executing Court has also not recorded any partial possession having already been taken and delivered to the respondent/decree holder.

7. In view of the above, I am unable to countenance the submission of the learned counsel for the respondent that partial possession has already been taken. In fact, the very prayer for police aid and break open was only on the strength of the averments made in the Paragraph No.3 of the affidavit dated 28.08.2026, which is totally silent about any partial possession having already been taken on 27.08.2026. On the contrary, the averments set out are that "However, upon reaching the petition premises, the execution order was resisted and obstructed by the Respondent/Judgement Debtor. The Respondent prevented the Bailiff from executing the delivery order of the Hon'ble Court, and he further locked the door of the petition premises". In the light of the above, I am unable to issue any directions or record part delivery being taken by the respondent.

8. In view of the foregoing, this Civil Revision Petition is disposed of with a direction to the Executing Court to decide the application filed by the revision petitioner under Order 21, Rule 106 CPC, within a period of four (4) weeks from the date of receipt of the copy of the order. Further proceedings in the Executing Petition shall stand deferred and subject to outcome of the Application under Order 21, Rule 106 CPC, the EP may be proceeded in the manner known to law. Consequently, connected Miscellaneous Petition is also closed. No costs.

09.09.2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RKP To The Additional District and Sessions Judge -II, Poonamallee.

P.B.BALAJI, J. rkp CRP. No.5751 of 2026 and CMP. No.24819 of 2026 09.09.2026