Bagyalakshmi vs V. Raghu

K. Ravichandrabaabu, J.—This civil revision petition is filed against the order dismissing the application filed by the petitioner u/s 47 of

CPC. The petitioner in the said application sought the dismissal of the execution petition on the ground that an application to set aside the exparte

decree is pending. Heard the learned counsel appearing for either side.

The respondent herein as the plaintiff filed a suit in O.S. No. 1764 of 2010 on the file of the City Civil Court, Chennai, for recovery of vacant

possession of the suit property and for damages for use and occupation. An exparte decree came to be passed in the said suit on 22.4.2010. In

pursuant to the said exparte decree, the plaintiff filed an execution petition in E.P. No. 1118 of 2011. The petitioner filed E.A. No. 5131 of 2011

u/s 47 of C.P.C. to dismiss the execution petition as not maintainable on the ground that he has already filed applications to set aside the exparte

decree along with condone delay petition and the same are pending. The Court below rejected the said application filed u/s 47 CPC on the ground

that the same is not maintainable on the reasons set out in the application. The said order is under challenge before this Court.

The petitioner as a judgment debtor filed the application u/s 47 CPC to dismiss the execution petition. The only reason stated in the affidavit filed

in support of the said application is that he has already moved the trial Court with applications one u/s 5 of the Limitation Act and another under

Order IX, Rule 13 CPC for condoning the delay in filing the set aside petition as well as to set aside the exparte decree. Certainly, that cannot be a

ground to file an application u/s 47 CPC to reject the execution petition. Pendency of those applications cannot be a ground to seek for rejection

of execution petition. The Court below has rightly considered the same and dismissed the application filed by the petitioner. Therefore, I find no

merits in this civil revision petition to interfere with the order passed by the Court below.

It is submitted by the learned counsel appearing for the petitioner that the applications filed u/s 5 of the Limitation Act is posted before the trial

Court on 02.9.2013 in I.A. No. 13723 of 2011 in O.S. No. 1764 of 2010. Considering the said submission, the trial Court is directed to dispose

of the application filed u/s 5 of the Limitation Act within a period of 30 days from the date of receipt of a copy of this order. Until then, the

Executing Court is directed not to proceed with the execution petition in E.P. No. 1118 of 2011. With the above observations and directions, this

civil revision petition is disposed of. Consequently, M.P. No. 1 of 2012 is closed. No costs.