Section 5 of the Limitation Act is not applicable to proceedings under Order 21 CPC.

P. RAMACHANDRA RAJU, J.

( 1 ) THE revision petitioner is the decree holder in OS No. 125/74. The short question involved is whether an application under Section 5 of the limitation Act to restore EA No. 1140/76 dismissed for default on 1-2-1978 is maintainable. The District Munsif by the impugned order dt. 17-12-1979 held that such an application is maintainable and hence this revision. The revision petitioner obtained a decree in OS No. 125/74 on the file of the District Munsif s Court, Nur vid. She was executing the decree against Respondents 1 and 2 in EP No, 25/71 on the file of District Munsif s court, Vijayawada. She brought the property of the 2nd judgment debtor to sale on 28-2-1972. At such sals, the 3rd respondent became the auction purchaser. The second judgment-debtor filed EA No. 1140/76 to set aside the sale. That application stood posted for hearing on 1-2-1978 on which date he could not attend court. EA No. 1140/76 was dismissed on 1-2-1978 for default. The 2nd judgment-debtor applied for setting aside the default order and as there was delay in making that application, he filed EA No. 1124/78 under Section 5 of the Limitation Act for condoning the delay that had occurred. He gave a reason that he was attacked by chest pain two days prior to 1-2-1978 and produced a medical certificate in proof of that allegation. The application was opposed by the auction purchaser mainly on the ground that it was not maintainable under Section 5 of the limitation Act. Both the parties invited a finding of the District Munsif regarding the maintainability of the application. The learned District munsif held that such an application to condone the delay was maintainable it is questioning that order that the decree-holder has come to this court in revision. Section 5 of the Limitation Act 1963 is inapplicable to applications filed under any of the provisions of Order 21. CPC Prior to Section 97 of the Amending Act of 1976, Order 21 Rule 105 was containing a provision that an application may be admitted after the said period of 30 days if the applicant satisfies the court that he had sufficient cause for not making the application within such period. Section 97 (1) of the Civil Procedure"any amendment made, or any provision inserted in the principal act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed. "the question posed is whether the said provision in Rule 105 introduced by the High Court was in any manner inconsistent with Order 21 Rule 106 as amended by the Amendment Act of 1976. Order 21 Rule 106 did not provide for the provision that was in force prior to the amendment. Such a provision would stand repealed if it was inconsistent with the provisions as enacted by the Amending Act of 1976. Otherwise, the provision remains uneffected and continues to be applicable to govern applications for condoning the delay in filing such applications in matters arising under Order 21 rule 106 CPC. Rule 106 as amended, made only provision for filing applications for setting aside orders passed ex parte etc. It does not contain any provision inconsistent with the provision made by the High Court by way of enabling a partv to apply in proper cases for condonation of dalay in setting aside orders passed ex. parte etc. There is, therefore, no inconsistency between the provision as was obtaining prior to the Amending Act and the manner in which Order 21 Rule 109 stands at present. I am, therefore, of the view that though reference to Section 5 of the Limitation Act is inapt, an application to condone the delay could be filed under Order 21, Rule 105 (4) as obtaining in this State. The Amending Act made substantial changes regarding the manner in which claims made under Order 21, Rule 58 and Order 21, Rule 101 CPC could be enquired into. The previous right of suit which wa

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