Defendants Who Failed To Appear Despite Service Lose Bid To Undo Possession-Execution Order: Mere Appeal Plan Not Enough, Madras HC Says

The first respondent/plaintiff obtained an ex parte decree for declaration and recovery of possession in O.S. No. 50 of 2011.

The petitioners, who were the second, seventh and thirteenth defendants, did not appear in the suit.

In execution proceedings, E.P. No. 3 of 2017, the petitioners sought to set aside the order dated 22 August 2026, claiming they had not received a reasonable opportunity to contest the proceedings and stating that they intended to appeal the ex parte decree.

The decree-holder submitted that notice had been served and the petitioners had failed to appear.

The petitioners invoked Section 115 of the Code of Civil Procedure to challenge the execution order.

The revision petition was brought under Section 115 of the Code of Civil Procedure.

It held, in the circumstances of this case, that a mere intention to file an appeal against an ex parte decree was not, by itself, sufficient ground to set aside the order made in execution.

The Court found from the record that the petitioners had been served and afforded sufficient opportunity, but had failed to appear and file their counter in the execution proceedings.

Given that the suit had been instituted in 2011 and the execution petition had been pending since 2017, the petitioners’ belated assertion that they intended to appeal the ex parte decree did not justify setting aside the execution order.

The Court therefore found no merit warranting revisional interference.

No costs were awarded, and the connected miscellaneous petition was closed.